MOORHEAD, Minn. — Defense attorneys in the case of two hockey players accused of sharing a video of sex with a minor are now arguing the alleged sex tape is constitutionally protected free speech.

Thomas Carey and Brandon Smith, both 20, each face charges of using a minor in a sexual performance, possession of child pornography and dissemination of pornographic work, all felonies, involving a 15-year-old girl.

Their defense attorneys have repeatedly painted the girl as the predator, claiming she enticed the two Lincoln Stars hockey players with sexually explicit photographs in order to meet them for sex after they played a game against the Fargo Force last February.

But in documents filed Friday, the defense goes a step farther, arguing the alleged sex and its recording are protected by constitutional guarantees of privacy and free speech.

The argument, written by Carey’s attorney, Jade Rosenfeldt, relates the alleged sex tape and its dissemination to the practice of sexting but not child pornography, citing sources that include a law review article titled “Digital Lovers: Keeping Romeo and Juliet Safe From Sexting and Out of the Courthouse.”

Child pornography harms the child, not only when the images are taken, but also throughout time, whenever the images are viewed, Rosenfeldt noted.

She argues that the video Carey is accused of making is another matter entirely. That alleged video is protected speech because the 15-year-old girl “was not the victim of child abuse,” Rosenfeldt claims.

According to the criminal charges against Carey and Smith, the girl had sex with Carey on Feb. 14 and found out later that a sex tape was being sent around when she received messages from people saying, “Nice video.”

She told Smith to send her any videos or images and then to delete them, the charges say.

If Carey shared the video, it’s just an example of sexting, “a growing phenomenon, and epidemic, amongst today’s teens,” Rosenfeldt wrote.

“Generally, it is agreed that the most effective and efficient means of handling instances of sexting is thorough well-reasoned prosecutorial discretion,” Rosenfeldt wrote. But the prosecution in this case, she said, “argues for the categorical exclusion of sexting from protected speech, without the sexts needing to be obscene. … Based on the United States Supreme Court’s treatment of the issue, such blanket prohibition is impermissible.”

Rosenfeldt wrote that prosecutors will likely point out that because the alleged victim is a minor, the constitutional right to privacy does not apply. But, she argues, “relevant case law on the issue clearly expresses that the right to privacy in sexual expression should be extended to adults and minors alike.”

A hearing in the case is scheduled for Thursday.