Parents Win Right to Block Sexting Cases
Mar 23, 2010
By Delores Amorelli, staff writer of SEOLawFirm.com’s Newsroom Column ‘In Good Practice’ – March 23, 2010
Recently, a three-judge panel of the United States Court of Appeals for the Third Circuit ruled that parents are allowed to block their children from child pornography charges they face for appearing in photographs found on their classmates’ phones. 
This is the first Federal Appeals Court opinion that deals with the topic of sexting — the transmission of sexually explicit photographs or messages by cell phone.  The case that started this controversy, Miller v. Mitchell, began in 2008 when school officials in Tunkhannock, Pennsylvania, discovered some explicit photographs of young female students, ages 12 and 13, on the cell phones of other students. After these photographs were discovered and reported, the district attorney told parents that their children must attend an education program or their children would be charged with felony counts of child pornography.  Several of the students refused to participate in the program, and their parents filed charges to block the district attorney’s charges. The concerned parents obtained an injunction from the U.S. District Court, prohibiting criminal charges from being filed and the district attorney appealed this injunction. 
The rationale behind the judges’ recent decision is that there is no way to prove that the teenage girls who appeared in the photographs actually engaged in distributing those photographs.  While the decision was clearly a victory for the teenagers and their families, the judges’ decision did not put the issue to rest. This case has received a great deal of attention from the media because of the issue it brings up regarding the First Amendment right to free speech. It begs the question: Does a child under the age of 18 have the right to send photographs or messages that are sexually explicit in nature? 
The result of this decision is, in effect, not much more than indecision. While the judges said in January that they would like to consider the role that the First Amendment plays in this case, they opted not to consider it in their final decision.  In making this ruling, the court does not answer the question about whether photos in the sexting controversy are free speech protected by the First Amendment.  Their decision carefully avoids suggesting that distributing photographs of children is something that is protected by the First Amendment, while also carefully avoiding the suggestion that children under the age of 18 do not have the right to transmit these types of photographs or messages.
This case may put the issue of sexting among teenagers to rest for a while. However, it is only a matter of time before the issue of sexting arises again, and sooner or later the courts will have to consider whether or not this type of communication falls under the protection of the First Amendment.
1. http://www.nytimes.com/2010/03/18/education/18sext.html -New York Times
2. http://blogs.wsj.com/law/2010/03/18/third-circuit-bans-sexting-prosecution-against-minors/ – WSJ Blogs
3. http://www.philly.com/philly/news/local/88337702.html – Philly.com