“Sexting”...Criminal or Defamatory?
With the rising practice of "sexting" -i,e., the act of sending nude photos or sexually explicit content via text message -- lawmakers around the country have been enacting specific laws to address the conduct. This article addresses some of the criminal penalties, as well as the often overlooked Civil penalties that may result from "sexting."
This year some States (Arizona, Connecticut, Illinois, and Louisiana) have enacted statutes addressing sexting.(5) Most States simply apply a fine, but some States such as Nebraska charge Felonies under some circumstances. Given the privacy and free speech issues that overlap, it is likely these laws will be formally challenged at some point.
CIVIL LIABILTIY FOR MEDIA DEFENDANTS
However, and in line with the privacy issues, Civil liability can develop where private matters or false matters are published without consent. The media may face liability for false light, invasion of privacy, or defamation in publication of “sext” messages due to the privacy of the material or misrepresentation of the material.
Several issues may arise during “sexting” lawsuits with respect to a media defendant.(1) First, if the publication occurred a public forum, Defendants may argue that Plaintiff was, a “limited-purpose public figure.” Where the Plaintiff is not an individual of “pervasive fame or notoriety” at the time of publication , The Supreme Court provides two factors to decide the issue of her involvement with a public controversy: (1) whether “sexting” constitutes a public controversy; and (2) the “nature and extent” of Plaintiff’s participation in the controversy.
“PUBLIC CONTROVERSY” DEFENSE
The Supreme Court has rejected the notion that “public controversy” includes all disputes of interest to the public. Mere newsworthiness is not sufficient to create a public controversy.(2) If the sexting occurred in the course of a larger event, e.g., during the tragic events at Cincinnati Sycamore High School (where a student committed suicide due to publication of sexting and nude photographs)—there may be support in the notion that “sexting” is a public controversy. Yet where the Plaintiff is not among those embroiled in controversy this would lose affect.
“NATURE AND EXTENT OF INVOLVEMENT_LIMITED PUBLIC FIGURE”
The second issue is “the nature and extent” of Plaintiff’s involvement in the controversy. Assuming arguendo that there is a valid controversy, Plaintiff’s involvement with the “sexting” and the nature of the Plaintiff’s act are the critical issues. In general, to be a limited purpose public figure, the plaintiff must voluntarily thrust himself into the vortex of the dispute. 3 The voluntary act creates an assumption of the risk and in labeling the person a public figure. Id. In other words, the plaintiff assumes the role by actively participating in the public issue in a manner intended to obtain attention.4
“Essentially, private concerns or disagreements do not become public controversies solely because members of the public find them appealing to their morbid or prurient curiosity.” Id., quoting Waldbaum.
- If the Defendant is not a media actor reporting on a controversy of public interest, then this argument loses validity and the defendant is complicit in both the generation and the propagation of the controversy.
- See Wolston v. Readers Digest, 443 U.S. at 167-68 (1979)(holding that the media cannot generate interest in a story through its own emphasis upon it and thereby “create” a “public” controversy); see also Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir. 1980) (stating that a public controversy “must be a real dispute, the outcome of which affects the general public or some segment of it.”) To be “public,” the dispute must affect more than its immediate participants. Id.
- Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
- Consider the Ohio case of Scaccia v. Dayton Newspapers, Inc., 867 N.E.2d 874 (Ohio Ct. App.2 2007), where the wife of a high-ranking, non-elected Police department official was determined to be a “private-figure” plaintiff in a suit concerning the receipt of $400,000 by her and husband from an elderly neighbor.
- Wall Street Journal, 8.25.10 (Teen Sexting: Felony or Folly?)