Federal Appeals Court Considers Pennsylvania Sexting Cases

January 18, 2010 by David S. Seltzer

Though my work as a Miami cyber crime criminal defense attorney, I’ve encountered numerous cases involving “sexting.” In far too many of these cases, prosecutors and school officials overreact and teenagers end up criminally charged with producing and sending child pornography, even in cases where they photographed themselves and were never in danger of exploitation. Now, according to the National Law Journal, the first sexting case has hit a federal appeals court. The Third U.S. Circuit Court of Appeals is considering whether prosecutors can bring child pornography charges against three teenagers whose pictures were found by school authorities in a “sexting” bust.

The case involves two pictures. One was of two girls, 12 at the time, who were photographed wearing training bras. The other was of a 16-year-old coming out of the shower topless, with a towel wrapped around her waist. They were among 16 kids who faced child pornography charges when their mid-Pennsylvania school district uncovered widespread sexting in 2008. The district attorney said he would file child pornography charges against them if they didn’t take a class about avoiding sexual predators, then write an essay about why sexting was wrong. Most of the students agreed, but the three plaintiffs did not. In their federal lawsuit, Miller v. Skumanick, the three girls argued that the photos were not child pornography, which makes them protected speech under the First Amendment and not appropriate for prosecution.

Before the Third Circuit, the girls’ attorney, Witold Walczak of the ACLU, argued that the photos were far too tame to be considered pornography. That meant the prosecutor lacked probable cause to charge them. He also argued that child pornography laws were not meant to apply to teenagers who photograph themselves. The attorney representing the district attorney argued that the law was intended to protect kids from their own bad decisions, and from sexual predators attracted to naked pictures. The NLJ reported that the Third Circuit gave that argument a tough reception, with one judge suggesting that the class was “a particular government official’s views of what it means to be a girl in today’s society[.]”

As a Fort Lauderdale child pornography possession defense lawyer, I hope the Third Circuit’s ruling sets a precedent for sensible behavior by prosecutors and school officials. It is not a good idea for teenagers to send each other naked pictures, but criminal prosecution takes that bad situation and makes it much worse. As the ACLU attorney pointed out, child pornography laws are intended to protect kids from adults who exploit them. That concern doesn’t apply to pictures kids take voluntarily, especially self-portraits or pictures taken by peer group members. Prosecuting them for this behavior doesn’t protect them so much as it produces lifelong negative consequences for a youthful mistake.

This is not idle speculation. As a South Florida child pornography possession criminal defense attorney, I have written on this blog several times about kids who face prison time and sex offender status for sexting. They include a young man here in Florida who was kicked out of college and has trouble finding work because of a child pornography conviction related to sexting. I hope the Pennsylvania case paves the way for jurisdictions around the country to take a less life-altering approach.