Text messaging while driving bans have taken hold in over 20 states, and now the question of whether text messaged photos can be considered child pornography takes center stage.
Text messaging has brought a whole new chapter to federal regulation of electronic communication. It is highly popular and very difficult to monitor, leading many teens to transmit nude or partially nude pictures to one another by phone instead of by email.
When District Attorney George Skumanick Jr.threatened to prosecute three girls in Wyoming County, PA, for child pornography if they refused to take a class on the dangers of sexting, they sued, claiming he was violating their First Amendment rights. This case, now in the 3rd Circuit Court of Appeals, will be the first to question the legitimacy of child pornography charges with text messaged images.
The case started when local Tunkhannock Area School District targeted 13 young people in an effort to set a precedent about the dangers of sexting. Three of those young people, all girls, contacted the ACLU. The ACLU challenged the threat of prosecution, and a district judge sided with their case.
The photos, while the girls were nude, were not deemed pornography in their "content and context" according to Pennsylvania law. Part of this consideration was the fact the minor herself was the one perpetrating the dissemination of the pictures, therefore removing any concept of victimhood in the situation.
Skumanick was not allowed to bring any charges against the girls as the photographs were not child pornography under Pennsylvania law. Therefore, charging the girls would be a violation of their First Amendment rights.
For his side, Skumanick says he was faced with a situation where pictures of nude or semi-nude girls were being sent to students in his district. The role of the local juvenile justice system, then, was to rehabilitate the students by warning them of the dangers of their actions through an educational process.
Concerns over how to regulate text messaging, including regulating content, will continue to be present in court rooms in the coming years. The new popularity of this technology has created some unforeseen consequences, such as "sexting" and texting while driving.
Groups on both sides will debate the relative reach of the government in determining when and how people can exchange in formation. In this case, a precedent will be set over whether minors have a right to determine the type of information they should be permitted to send and even how much control they should have over their own bodies.
