Freud on the Court: Re-interpreting Sexting & Child Pornography Laws

Although many developments in child pornography law are troubling, perhaps the most disconcerting is the growing number of cases in which children are being charged with violating child pornography laws for engaging in “sexting,” or sending sexually explicit photographs via cellular phones or over the Internet. Although the law implicitly considers children the victims of child pornography and the photographer and audience as punishable perpetrators, this logic is challenged by sexting cases. Yet in many instances, children who take and send “lascivious” pictures of themselves have been charged with violating the very law designed to protect them from the harms associated with child pornography. As a result, many scholars have recently decried the law as unjust and questioned its confusing motives. Existing scholarship has roundly criticized the situation’s ostensible absurdity, but little work has been done to understand the legal motives for charging juveniles in sexting cases. This Article endeavors to better understand the motivation behind the law’s perplexing stance on teenage sexting. A close analysis of recent sexting cases reveals a remarkable correlation between Freud’s theory of sexuality and sexting jurisprudence. Beginning with the first Supreme Court decision on child pornography, New York v. Ferber, subsequent Supreme Court and District Court decisions on child pornography and sexting have been based on a strikingly Freudian logic. Perhaps fittingly, the alignment with Freud is subconscious: no court has acknowledged that its decision rests on a reading of Freud. Yet, as this article shows, Freud offers an extraordinarily accurate theoretical account of what judges have done in recent sexting cases. Understanding sexting cases in light of Freud does more than just explain the bewildering decisions of state and federal courts to uphold convictions against children for violating child pornography laws. In light of this unexpected finding, this article also provides a new basis from which to assess the goals of the law. As prosecutors continue to bring charges against teenagers for sexting, this article offers judges an alternate model for thinking about these difficult cases. Moreover, as more state legislatures draft new rules governing teenage sexting—in 2012 thirteen states considered resolutions aimed at sexting—this article proposes that lawmakers either abandon or correct their subconscious Freudianism in sexting cases, offering suggestions about how better to deal with teenagers who sext

The Indigenous McClain Doctrine: A New Legal Tool to Protect Cultural Patrimony and the Right to Self-Determination

In December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which obligates the United States to respect indigenous self-determination and protect Native American cultural objects. Yet, nearly a decade later, the United States has made little progress to meet these commitments, resulting in growing frustration in the indigenous and international human rights communities. At its 2017 meeting on the implementation of UNDRIP, the U.N. expert group condemned the United States for its inaction. But the failure to act is not the result of indifference. Current U.S. law makes it impossible for the United States to satisfy its human rights obligations. This Article identifies a paradoxical conflict resulting from the dual obligation imposed by UNDRIP: the current statutory scheme for protecting indigenous cultural property in America (NAGPRA) actually undermines tribal self-determination. By carefully analyzing NAGPRA case law, this article shows that non-indigenous judges, lawyers, and defendants identify what constitutes Native Americans’ cultural property. Tribal law represents the ideal legal scheme for respecting self-determination, but tribal criminal law cannot be extended over non-Indians, making it an ineffectual safeguard of cultural heritage. The seeming irreconcilability of these two goals amounts to the “indigenous cultural patrimony problem.” Can a law effectively protect Native American cultural patrimony while simultaneously respecting the right of indigenous peoples to exercise cultural self-determination? This article offers an innovative solution by applying art law jurisprudence to Federal Indian law. Specifically, this article argues that the paradox can be resolved by utilizing the legal instrument deployed to address stolen foreign cultural property (the McClain doctrine) in the domestic context. This Article proposes a new legal tool: the “indigenous McClain doctrine,” which effectively extends criminal tribal jurisdiction over non-Indians in cases involving stolen Native American cultural property, thereby resolving the conflict and meeting America’s obligations under UNDRIP. Importantly, this article demonstrates that the “indigenous McClain doctrine” faces no jurisprudential bar—despite the prohibition of extending tribal criminal law to non-Indians—and it makes recommendations on how to achieve its implementation

Freud on the Court: Re-interpreting Sexting & Child Pornography Laws

Although many developments in child pornography law are troubling, perhaps the most disconcerting is the growing number of cases in which children are being charged with violating child pornography laws for engaging in “sexting,” or sending sexually explicit photographs via cellular phones or over the Internet. Although the law implicitly considers children the victims of child pornography and the photographer and audience as punishable perpetrators, this logic is challenged by sexting cases. Yet in many instances, children who take and send “lascivious” pictures of themselves have been charged with violating the very law designed to protect them from the harms associated with child pornography. As a result, many scholars have recently decried the law as unjust and questioned its confusing motives. Existing scholarship has roundly criticized the situation’s ostensible absurdity, but little work has been done to understand the legal motives for charging juveniles in sexting cases. This Article endeavors to better understand the motivation behind the law’s perplexing stance on teenage sexting. A close analysis of recent sexting cases reveals a remarkable correlation between Freud’s theory of sexuality and sexting jurisprudence. Beginning with the first Supreme Court decision on child pornography, New York v. Ferber, subsequent Supreme Court and District Court decisions on child pornography and sexting have been based on a strikingly Freudian logic. Perhaps fittingly, the alignment with Freud is subconscious: no court has acknowledged that its decision rests on a reading of Freud. Yet, as this article shows, Freud offers an extraordinarily accurate theoretical account of what judges have done in recent sexting cases. Understanding sexting cases in light of Freud does more than just explain the bewildering decisions of state and federal courts to uphold convictions against children for violating child pornography laws. In light of this unexpected finding, this article also provides a new basis from which to assess the goals of the law. As prosecutors continue to bring charges against teenagers for sexting, this article offers judges an alternate model for thinking about these difficult cases. Moreover, as more state legislatures draft new rules governing teenage sexting—in 2012 thirteen states considered resolutions aimed at sexting—this article proposes that lawmakers either abandon or correct their subconscious Freudianism in sexting cases, offering suggestions about how better to deal with teenagers who sext