Court May Allow Underage Teen Sexting

A federal court in Philadelphia may make it legal for teens to send naked pictures of each other using cellphones.

The U.S. Court of Appeals for the Third Circuit will hear arguments today in Philadelphia from the American Civil Liberties Union of Pennsylvania that would ban a district attorney from prosecuting underage teens involved in “sexting.”

Sexting is the act of taking explicit photos and using a mobile device to send them to one or many people.

This is the first case in the country challenging the constitutionality of bringing child pornography charges in the context of "sexting."

On March 30, 2009, U.S. District Judge James Munley granted a temporary restraining order blocking the district attorney, George Skumanick, from bringing the charges, finding that the photographs were not child pornography under Pennsylvania law and were protected under the First Amendment.

The Wyoming County district attorney allegedly said he would charge the three high school girls with child pornography if they didn’t agree to be placed on probation, participate in a five-week re-education program and be subject to random drug testing.

The photos were discovered by Tunkhannock School District officials on students' cell phones.

Skumanick says that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed.

In Skumanick’s appeal, he claims the District Judge didn’t have the authority to bar his decision to seek possible charges against the teens.

“Under the Pennsylvania Child Pornography Statute 18 Pa.C.S.A. 6312.1, “prohibited sexual art” is defined as “...nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction,” he argues.

“The photograph of Nancy Doe depicts a young woman posing in an provocative manner with her breasts exposed. Nancy Doe did not testify at the hearing and has provided no evidence regarding the circumstances of the staging of the photo or its dissemination. However, even without any testimony, the District Court made the determination that the photo could not be considered pornography under the Pennsylvania Statute. This is clearly not the job of the District Court.”

It is unknown if the court in Philadelphia will rule in the case today.
 

More Court Documents

• Miller Complaint (151k PDF)
• Miller TRO order 3-30-09 (131k PDF)
• Miller appeal brief 9-11-09 (5930k PDF)
• Juvenile Law Center amicus (316k PDF)
• TRO hearing transcript (216k PDF)
• Appellant brief (120k PDF)
• Skumanick reply brief (98k PDF)