February 10, 2016

No, It’s Not Your 1st Amendment Right to “Talk Dirty” to a Child: NCOSE Filed Brief Before Georgia Supreme Court

READ OUR BRIEF HERE

Criminal laws must be updated to adapt to the new Internet community.

Like any other community the Internet is a place for business, relationships, dating and unfortunately criminal activity, including the sexual exploitation and abuse of children. This is why the National Center on Sexual Exploitation has filed an amicus brief for a court case in Georgia stating that it should not be legal to “talk dirty” to a child.

The Georgia Supreme Court will hear oral arguments on February 22nd regarding this First Amendment challenge to a Georgia statute criminalizing obscene Internet contact with a child. NCOSE believes that Georgia’s statute is necessary to protect children from harm because the First Amendment does not protect sexually exploitive speech to children. The person challenging the statute, states in his brief to the Court that he has a First Amendment right to “talk dirty to a child.” We at NCOSE, think absolutely not. This is not harmless chatting but rather child exploitation. And the most frightening aspect of this case is that a very similar statute in Texas[1] has already been struck down on First Amendment grounds led by the same defense attorney challenging the statute in this case.

The sad and scary reality is that child sexual abuse and exploitation has moved online. And due to the nature of the Internet the problem is only growing. A child predator has instant, anonymous access to children all over the country, and even the world. Meanwhile, young adolescents looking to make friends while both curious and naïve about sex are virtually all online, all the time.[2] And this is not on the family computer under the watchful eyes of mom and dad but on tablets and smartphones, which are carried around with the child everywhere they go.[3] This means those who would mean to harm these children can find them on social media platforms and chat rooms any time, anywhere, and children of these young ages tend to share too much information and actively seek out online friendships. Especially, those children who are most vulnerable to sexual abuse.

States have been trying to protect children from predators since the dawn of the Internet ageabuse moved online child but there is still much left unaddressed and technology has changed faster than laws have been updated. Most States have laws against online solicitation of minors. And most States have laws against exposing oneself to a minor in person or selling minors obscene or indecent materials. But what if an adult uses a webcam to expose himself/herself to minor online? Or what if he/she describes in graphic detail sexual encounters, or sexual acts he/she would like to perform on the child he/she is speaking to via online messaging? And even more disturbing, what if the adult instructs the child to touch themselves sexually, directing and commanding their movements? These are real examples of the activities which have been prosecuted under this Georgia statute. And without this statute such activity would considered legal. This activity does not fall under other statutes aimed at prohibiting child abuse and exploitation. But because these actions, which amount to cybersex, and sometimes even remote child molestation, are occurring via Internet chat there is a real possibility that it could be given a pass under the guise of First Amendment freedom.

This serious confusion over the First Amendment’s role in the Internet space could cause serious consequences for children who are being victimized and traumatized by predators online. And it would be completely inconsistent with First Amendment jurisprudence. The First Amendment does not protect child exploitation and has always restricted a minor’s access to material that is harmful to them. And the content of these communications meet the standard for material that is harmful to minors. But because harmful to minors laws do not encompass live online communications this statute is needed to cover this ground.

The Supreme Court of the United States has already held that material, such as magazines, books, pictures, or videos containing sexually explicit nudity or sex acts appealing to the prurient interest of a child may be restricted to children, even material that would not be obscene as to adults, without offending the First Amendment. In fact, the Supreme Court has placed the protection of children from sexual exploitation as the highest priority of the States and material that is harmful to them receives no First Amendment protection in its distribution to children. The Georgia state legislature used the same language that has been upheld in harmful to minors laws and merely applied these restrictions to live streaming video or instant message conversations online. Further, we argue that these online communications are even more harmful than obscene magazines or videos, and therefore the State has an even greater interest in protecting children, because it is not simply mass produced and available to children, but created for a specific targeted child by an adult. The exposure is intentional and crafted around that particular child’s vulnerabilities and inexperience with sexual matters.

Furthermore, freedom of speech does not protect criminal speech. For example, conspiracy, which amounts to criminal conversations, obscenity, and advertisements and solicitations for child pornography are all “speech” and yet completely excluded from First Amendment protection. Similarly, there is no reason why conversations or webcam video which would be rightfully restricted if printed in a book or contained on a DVD cannot be restricted merely because they occur in real-time through the medium of Internet communications. Such harmful material does not become transformed into political speech imbued with value simply because it takes place online.

And this statute is careful to prohibit only conversations between an adult and a child online which intentionally exploit and abuse a child. The statute requires belief by the adult that he/she is speaking to a child and the intention to sexually arouse either himself/herself or the child. Any doubt or concerns about overbreadth are dispelled in looking at the statute’s real world application. It reveals that what is in fact prohibited is the grooming of children for sexual abuse and/or exposing them to sexually explicit language and images. Such actions are harmful to children and inherently exploitive.

States must be able to extend the protections for children that already exist in the physical world to the realm of the Internet. And the State of Georgia has properly done so with this statute. This is why the National Center on Sexual Exploitation has written and filed an amicus brief to inform the Georgia Supreme Court on the exploitive nature of the content restricted in this statute, how such exposure to sexually explicit material is harmful to children, how the sexualization of children is harmful to them, and that such explicit conversations are a well recognized tool by researchers and law enforcement in the grooming of a child for further sexual abuse by child predators and should therefore receive no First Amendment protection.

READ OUR BRIEF HERE


 

[1] See Ex Parte Lo, 424 S.W.3d 10, 24–25 (Tex. Crim. App. 2013).

[2] “Fully 95% of all teens ages 12-17 are now online.” http://www.pewinternet.org/fact-sheets/teens-fact-sheet/

[3] Id. “Three-quarters (74%) of teens have accessed the internet through a mobile device such as a cell phone or tablet.  One-quarter of teens (25%) access the internet mostly on a cell phone.”

 

 

Dani Pinter, Esq.

Senior Legal Counsel for the NCOSE Law Center

Dani Pinter, Esq. serves as Legal Counsel for NCOSE and its Law Center. In this role, she drafts and consults on state legislation to help unravel the complex web of sexual exploitation. Dani also serves as a voice for human dignity in precedent-setting legal cases by authoring legal briefs and providing research and advice to attorneys and will launch litigation on behalf of victims of sexual abuse and exploitation. Dani speaks regularly on a variety of exploitation topics, with a special focus protecting youth in a digital age and on legal solutions to curb the demand for prostituted and sex trafficked individuals.

Dani Pinter originally joined the NCOSE Law Center at its inception in August of 2015. Dani was instrumental in reinvigorating the law center and traveled the country building relationships and raising awareness. Notably, she drafted the first piece of legislation recognizing the public health impacts of  pornography. This innovative piece of legislation has since been adopted in more than a dozen states. Dani also authored a key legal brief in a case involving a child predator who claimed a constitutional right to find children online and talk to them about sex in an arousing and exploitive manner. Her legal brief helped convince the Georgia Supreme Court to rule against the child predator and shut down the agenda of pro-child exploitation forces to go state by state trying to toss out such laws.

In 2016. Dani moved back to her home state of Florida to start a family and there joined the State of Florida’s Department of Children and Families as a Senior Attorney in Children’s Legal Services. In that role, Dani litigated cases involving child abuse, abandonment, and neglect. She worked tirelessly to serve the children and families in need in her home state. During this time, Dani saw first-hand the devastation that sexual abuse inflicts on children and families and the cycle of abuse and trauma it creates.

Throughout her time with Children’s Legal Services, Dani brought the knowledge she gained from NCOSE to every one of her cases. She could not help but note the policy changes and education that were needed in this field. So, when an opportunity to work with NCOSE again arose – Dani seized it without hesitation. Dani rejoined the NCOSE law center in 2019 as Legal Counsel.

Dani has always had a passion for human rights issues especially those affecting women and children. This passion is what led her to Regent University School of Law. Upon acceptance, Dani received the Wilberforce Award, a full academic scholarship for those with human rights interests. While at Regent, Dani was in the Honors Program, a member of the Moot Court Board, the Journal of Global Justice and Public Policy, and the Student Bar Association. During her studies Dani interned with the American Center for Law and Justice (ACLJ) and the Florida Attorney General’s Office of Statewide Prosecution.

Prior to law school Dani worked as a government relations intern for multiple DC policy organizations and graduated from the University of Central Florida with dual degrees in Psychology and Marketing.

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