The Case of the Topless Teenager: A Legal Win for Sexting Teens

Photo Credit: C y r i l l i c u s

Last March, a three-judge panel of the U.S. Court of Appeals for the Third Circuit delivered a win -- but a narrow win -- to teens who are determined to protect their First Amendment rights, and parents who support them in doing so.

The decision concerned "sexting" -- which the plaintiffs defined as "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." The images at issue in the case, however, appear to have been "sexted" only over cellphones, and the persons depicted were clothed or, in one case, semi-nude.

The case was sparked by a District Attorney's threat to prosecute teens who engage in "sexting" under state child pornography laws. More specifically, it focused on the D.A.'s putting the teens to the choice of either facing the charges, or taking a course on sexting and gender roles.

In the future, other teens may not be put to this choice, but simply may face charges, with no option of taking a course. Those cases, then, may be even more disturbing than this one. As I argued in a prior column, child pornography charges are a poor fit with teen-to-teen sexting. So are contributing-to-the-delinquency-of-a-minor laws -- as I contended in another column. Especially with First Amendment rights at stake, applying longstanding laws that were drafted by legislators who never imagined the impact of new technologies would be a grave mistake.

To be clear, I don't mean to contend that sexting should never have any legal consequences. Romeo-and-Juliet sexting by a teen couple is one thing; high-school seniors victimizing and bullying a middle-schooler by sexting a nude locker-room photo of him or her to numerous classmates is quite another. But important distinctions like this need to be part of new laws and court decisions that take a fresh look at sexting, rather than trying to fit it into old legal molds.

Accordingly, the ACLU and Professor Seth Kreimer of Penn's law school should be lauded for taking the side of the teens in this litigation. By doing so, they are helping to forge a new body of law that seeing sexting as what it is, and considers reasonable ways to address it.

The Facts

In the case before the Third Circuit panel, twenty teens who had either appeared in photos that were "sexted," or received "sexted" photos of others on their cellphones were asked by a D.A. to choose between facing criminal prosecution by the State of Pennsylvania on child pornography charges, and attending a six-to-nine-month "education program."

Even a female teenager who had posed for a photo in a bathing suit, and two teens who were photographed from the waist up wearing opaque white bras, were forced to make this choice. So was a teen who appeared in a photo topless but otherwise covered.

The program was different for male and female students, and had decidedly sexist overtones, purporting to teach the female teenagers "what it means to be a girl in today's society, advantages and disadvantages." The students were also required to write an essay explaining why their actions, in engaging in sexting, were wrong -- whether or not they actually believed that what they had done was wrong.

A Disappointing Decision on Mootness

During the litigation, the D.A. agreed not to prosecute the female teenagers who were not even partially nude -- that is, the ones who wore the bathing suit and the opaque bras. Their cases were therefore dismissed as moot by the Third Circuit.

Instead, I believe that the Third Circuit should have applied the mootness exception for infringements that are "capable of repetition but evading review" here. That's because if future D.A.s use the same modus operandi that was employed here -- offering teens a choice between an "educational" course and criminal charges -- most will likely take the course, and many may be too scared to sue, for fear that the suit itself would cause the D.A. to renege on the bargain and file criminal charges after all.