Legal News

Third Circuit Bans ?Sexting? Prosecution Against Minors

By Ashby Jones

Do teens, tweens or anyone else under 18 have a First Amendment right to send sexually explicit messages or photos through their cell phones?

It’s a provocative question, and one we thought we might finally get some guidance on from the Third Circuit in Philadelphia. In January, the Third Circuit heard oral arguments on whether a teenager who sent sexually explicit photos with her phone could be prosecuted for child pornography. (Click here for our post on the oral argument.)

Well, on Wednesday we got our ruling. Sort of. The Third Circuit, in this opinion, decided to punt on the First Amendment issue. But the ruling was a win for the girl, a then 16-year-old from a town near Scranton, Pa. The three judges said a prosecutor could not charge her merely for appearing in a photograph without evidence she had engaged in distributing it. Click here for the Philadelphia Inquirer story; here for the NYT piece.

The backstory: The district attorney in Tunkhannock, Pa., George Skumanick, took a novel approach after a handful of pictures turned up on cell phones at a local high school. He told parents they could either enlist their kids in an education program or have the teens face felony charges of child pornography.

The ACLU sued on behalf of the girl, who refused to take the class.

In March of last year, Scranton, Pa., federal judge James M. Munley sided with the ACLU, issuing an injunction blocking Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected speech under the First Amendment.

The court said in January that it wanted to consider the First Amendment issue, but yesterday said: “we decline to consider it.”

The court said further that the girl had “a likelihood of success” on the claim that the threatened prosecution was made “in retaliation for Doe’s exercise of her constitutional rights not to attend the education program.”

Full post as published by Law Blog - WSJ.com on March 18, 2010 (boomark / email).