Last year, a Pennsylvania prosecutor threatened to bring child pornography-related charges against sexting teenagers who had posed for nude photographs or taken nude photos of themselves.The plaintiffs in the case defined sexting as “the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.” (For a more colourful explanation, head over to Urban Dictionary.)
When the pictures were discovered, prosecutors sent letters to the teens who had the pictures on their cell phones and those that appeared in the photographs and told them they must either attend a class about the dangers of sexting or face prosecution.
A couple of children (and/or their parents) refused to attend the class and, with the help of the ACLU, filed suit on behalf of themselves and their children. A court awarded a preliminary injunction against the prosecution in light of the lawsuit’s claims that the prosecutor’s tactic was retaliatory in violation of the students’ First Amendment rights, as as part of the class they would be compelled to write an essay on what they did wrong. The “retaliation component” was the prosecutors threat to charge them if they did not attend the class, rather than a charge based on their committing a crime. In addition, the parents argued that the the prosecutor was violating their right to parent.
The 3rd Circuit upheld that decision this week. (The Legal Intelligencer covers the story, and has a link to the full opinion, here.)
The opinion does, however, leave open the question of whether the teens were within their First Amendment rights in taking and/or appearing in the photos. The plaintiffs asserted that claim in the original suit, but the lower court’s injunction, the opinion noted, was based on the compelled speech and parenting claims only. The right-to-be-in-the-photographs issue was not briefed for the 3rd Circuit. The Court noted, however, that that issue could be raised as the case proceeds on the merits.
So whether teens have a right to send each other racy pictures of themselves is an open question, but the Court’s strong protection both of the students’ right not to attend the class and the parents’ right to instill whatever “morals” they so choose might be an indicator of how courts, or the 3rd Circuit, at least, think this should turn out.
The wording of the opinion makes it sound like they were disappointed they did not get to tackle this one, and it does raise really interesting, not-so-bright-line legal questions. Assuming the pictures actually meet the standard of “child pornography,” it seems to us the question should focus on who is viewing the picture, rather than taking it (assuming the taking is uncoerced).
If a teen girl takes a picture of herself and sends it to a teen boy — charging a sixteen-year-old boy for having (and the same-aged girl for creating) a picture of someone his own age seems beyond the scope of what child pornography laws were designed for. It’s obviously nomal teenage boy behaviour to endeavour to see as much of a teenage girl as is readily available.
If, however, the picture found its way to someone of age and they viewed/kept/distributed it, child pornography charges would be in order, no matter who took the photograph. (In other words, high school seniors be very wary of sexting with your younger girlfriend.)
Of course the bottom line is that everyone (well, everyone besides teenagers) wishes the the youngsters would just not send any revealing pictures at all. Oh, wishful thinking.
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