Is sexting naked pictures distribution of pornography?

From time to time I hear stories of the prosecution of teenagers for possession and distribution of child pornography as a result of sending or re-sending pictures through text messaging. Typically, these stories involve a young teenager who takes a naked “selfie” and then texts it to a friend. The friend then sends it to a lot of friends with the result that school officials hear of the distribution of the picture. The police get notified and arrests are made for possession and distribution of child pornography. So, are naked selfies child pornography? Can a person be arrested for texting these naked pictures?

In most cases, naked pictures of one self or “selfies” are not pornography. Even full frontal nudity pictures of young children and young teenagers are probably not pornography. In other words, in order to be considered pornographic, there must be more than just nudity. It doesn't matter if it is a boy or a girl, full nudity or partial nudity, there must be more than nudity to make the picture pornographic.

Since 1973 the United States has had one basic definition of obscenity (which includes pornography):

"(a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."  Miller v. California, 413 U.S. 15 (1973),

Legal disputes over selfies taken by children usually focus on the second element of depiction in a patently offensive way of sexual conduct. Naked selfies taken by teenagers are usually pictures of the teenager alone. No other person is in the picture. While some selfies could involve more than mere nudity, the vast majority of these pictures are just nude pictures. In a recent case in Massachusetts, the Court looked at this issue in the context of a convicted sex offender who possessed a number of pictures of naked children while he was in prison. Commonwealth v. Rex, No. SJC–11480 (July 9, 2014). The court found that merely naked pictures cannot be considered pornography. There must be more. Even in the context of a convicted sex offender in prison, nude pictures were not considered obscene. The Court describe six factors to consider to determine if the pictures could be considered pornographic:
“1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
“2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
“3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
“4) whether the child is fully or partially clothed, or nude;
“5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and]
“6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” The Court took these factors from a prior case: United States v. Dost, 636 F.Supp. 828, 832 (S.D .Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987).

Nude selfies, without something in addition to the nudity, cannot be considered obscene or pornographic. Texting pictures of this type can not be considered distribution of child pornography. Possession of these pictures on a cell phone or computer can not be the basis for a criminal prosecution.

Hopefully this article will not encourage anybody to take naked pictures of themselves and to text them to others. It is a bad idea and hopefully recent stories of the leaking of naked pictures of celebrities from hackers should be a deterent to people. However, if someone is approached by the police for sending or receiving naked pictures, then they should consult an attorney who can advice them on the laws concerning pornography. It is better to have an attorney intervene and maybe stop a prosecution than having a prosecution started, published in newspapers, and then dismissed. Consulting an attorney quickly may prevent injury through stories in local media.