Is “Sexting” Child Porn Or Protected Free Speech?

That’s the question the 3rd Circuit Court of Appeals in Philadelphia will soon answer in a case of first impression, calling into question the controversial practice of “sexting.”  For those of you unfamiliar with the lingo, “sexting” is the practice of using cell phones to send sexually provocative photos of oneself to another.

According to a report by the Pew Research Center‘s Internet & American Life Project, only 4 percent of teens reported sending sexually explicit photos or videos of themselves.  However, the same report indicated that 15 percent of teens with cell phones ages 12-17 had received nude or nearly nude photos by phone.  You can link to the Pew report here.

This case began after a number of sexually explicit photos were discovered by school officials Tunkhannock School District, northwest of Scranton, PA.  School officials contacted the local district attorney.  Ultimately, the district attorney’s office threatened to charge 16 teens with child pornography if they did not attend a recommended after-school education course and write an essay about why “sexting” is wrong.

All but 3 of the teens agreed to the punishment.  However, 3 girls and their parents went to the federal District Court, where Judge James Munley issued an injunction preventing the district attorney’s office from either forcing them to take the class or charging them with child pornography. A PDF copy of the District Court judge’s ruling is in the Box under Miller v. Skumanick.

The matter was argued to the 3rd Circuit on January 15, 2010.  As soon as a decision is reported, an update will be posted on CRW.  In the meantime, what do you think?  As you consider the issue, bear in mind that the district attorney’s office seeks to charge the teens with child pornography, not any adults.  Regardless of how you may feel about “sexting,” do you think the district attorney is properly using child pornography laws in this case?

Additional articles discussing this case can be linked to here and here.

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