What Does Consent Mean In Art Law? A First Amendment Take and Revisiting An Old Article

Today, the New York Times has an article about parenting and parents taking photographs of their minor children, and whether such photos can be considered the equivalent of a #MeToo issue. I have expertise related to this question, as well as the #MeToo movement, based on my career as a former litigator, as well  as an early article I wrote about involving a U.S. Supreme Court decision involving computer generated images of child pornography, which the Court said were protected in an opinion by Justice Kennedy, who discussed the fact that there should be no such thing as "thought crime." 

Thought crime, which Justice Kennedy cared deeply about given his Russian heritage and views on totalitarianism and book burning (which also occurred in Nazi Germany), should not be a crime. If someone thinks something in law, but doesn't act on it, unlike in certain religious venues where thoughts can be "sinful" even if they are never acted upon, does not exist and there's no way to render pure thoughts themselves illegal. Indeed, there's an excellent dystopian book written by the author Dave Eggers called "The Circle" in which he envisions a world in which platforms effectuate mind reading or intend to do so because they believe that thoughts are a form of information, and essentially believe in a Foucauldian panopticon. 

Whether today's society is a panopticon, I'll remain silent about, but I will say that as to the issue raised in the New York Times piece, to my mind there's a clear difference between public and private photographs, and that private photographs assuming they are never posted on the internet but that are taken for personal use of children by their parents for the sake of mementos or keepsakes should be legally protected, and are not a #MeToo issue. Of course, there's the chance of someone invading a parent's privacy, and the photo being illegally obtained of a child, but in that case, the perpetrator would be the person who invaded the parent's privacy, not the parent, and the illegality would not be the parent's act, but the person who invaded the privacy, and the invasion of privacy by a third party would then be a #MeToo issue.

As to whether posting images of children on the internet is a #MeToo issue, or sharing photos of children is a #MeToo issue, it's a question of first impression that hasn't been litigated yet. Children are too young to give consent, and in most jurisdictions, parents have the ability to consent on behalf of their minor children. But if the children are in compromising poses, say they are nude, there are cases of actual police arresting parents for child pornography. And I guess my current view is that those arrests are actually fair if the photos were displayed publicly.

There are serious implications for art law here. One of my favorite photographers is Robert Mapplethorpe, who took nude photos of a youth in sexual poses, and an art museum in Cincinnati actually had an entire exhibit shut down. In 2006, I believed that this was inappropriate. But I hadn't had the benefit of the #MeToo movement, and my mind has changed. I do believe artists should be able to paint nude - and consenting - adults, but nude children? I think not. And the question of intent - which concerned some courts (namely did a parent or artist harbor sexual thoughts as to the child) - is irrelevant because the pose would objectively be sexual, and such photos should be measured by an objective test since mind reading is very difficult and measuring intent is virtually impossible absent extrinsic evidence of intent. 

Do I retract my earlier piece? No, but if I were writing it today, I'd say something different, and I think I underestimated the privacy interests at stake, and I do conclude privacy is a fundamental human right even if society could be considered essentially a panopticon. Everyone - all members of society - deserves privacy. Even celebrities, and the invasion of Princess Diana's privacy by the press directly led to her death, and even celebrities have been harassed by the media, and while I'm a former media lawyer, I certainly do not defend paparazzi. 

-Cortelyou C. Kenney (9/12/25, 11:30 am CT)  

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