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Sexting Teens Get Reprieve from Judge on Child Porn Laws, But Will it Last?

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By Javier Lavagnino, Esq. on March 31, 2009 3:53 PM

A judge has slapped down a prosecutor who was apparently trying to teach some teens what they felt was an unwelcome lesson regarding sexting. In short, however, sexting is the practice of sending sexually suggestive messages or images via cell phone or on the Internet. Teens under 18 distributing nude or semi-nude photos of themselves and their friends have been facing increased instances of prosecution under child pornography laws, raising concern and commentary that such laws are being used in a manner that was not intended when they were written.

It is in this context in which Reuters reports that the ACLU brought suit on behalf of three teens whose photographs appeared on cell phones confiscated by Pennsylvania Tunkhannock School District school officials. The pictures at issue, noted Reuters, "showed two of the girls wearing bras, and another standing topless with a wrapped towel around her waist. No sexual activity was displayed." Also, the photos were apparently distributed by other individuals.

The suit arose after Wyoming County District Attorney George Skumanick threatened to charge the children "with possessing or distributing child pornography, which is a felony, unless they agreed to probation and participated in a 're-education' program." Wishing to be neither re-educated nor prosecuted, the ACLU and teens sought a temporary restraining order (TRO) and prevailed yesterday. The court based its decision not only on the constitutional rights of the children to be free from "compelled" speech (the re-education program), but also those of their parents to freely direct the teens' education. The threat of prosecution was essentially being used in such a way that an ordinary person would be deterred from exercising such constitutional rights.

However, the court emphasized that this ruling was not definitive nor final on all the issues in the case. In its own words, it noted the decision "is preliminary and not intended to absolve the plaintiffs of any potential criminal liability." Nevertheless, however, plaintiffs made "a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one."

Not surprisingly, the ACLU has hailed the decision. The organization's legal director in Pennsylvania stated, "This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting." D.A. Skumanick, however, might not have appreciated having his toes of state prosecutorial authority stepped on, stating, "My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system." Skumanick is considering an appeal.

Below are more resources on the practice of sexting and the consequences, both legal and social, faced by teens. The survey includes tips to help parents talk to their teens about these issues.

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