Julie Hilden

The U.S. Court Of Appeals for the Third Circuit Issues an Encouraging Ruling in a First Amendment Case About Teen "Sexting"

By JULIE HILDEN
Monday, March 29, 2010

On March 17, 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. 

The students and parents here were laudably -- and, I think, unusually -- brave.  It is easy to imagine other parents telling their kids, in all good faith, to be quiet, be good, and finish the course, so that their changes of getting into college will not be harmed.  

For this reason, I believe the mootness exception would have applied, and should have been invoked, so that all the teens' cases could go forward.

The Case of the Topless Teenager:  The Third Circuit Panel Makes the Right Call

The case of the teenager who had been photographed topless did go forward, for with respect to that case, the D.A. was unwilling to promise that charges would not be brought.

Thus, with the help of the ACLU, that lone teenager, known as "Nancy Doe," and her mother, "Jane Doe," who supported her case, sued the D.A's Office on three theories.  The Third Circuit panel essentially agreed that all three theories could be viable, and left all three to be further developed in the district court.

First, because the D.A. put "Nancy" to the choice between the course and the future prosecution, the court held that Nancy would, if prosecuted in the future, suffer retaliation by the government for exercising her freedom of expression.  Accordingly, the court opened the way for a district court injunction against any future prosecution.

Second, the court allowed Nancy to proceed on the theory that the D.A.'s offer had infringed her right not to be compelled to speak because, to avoid criminal charges, she would have had to write the required course essay in which the students were to state "how [their] actions were wrong," and would have had to affirm beliefs about her proper gender role that she did not actually hold.  (The First Amendment -- though it formally establishes only a right to speak without being silenced by the government -- has been interpreted by the Supreme Court to imply a right not to be forced by the government to speak, as well.)

Third, the court held that Nancy's mother, Jane, could continue to assert her right to direct Nancy's upbringing and education with respect to the topics that the D.A.'s course covered -- and thus to keep Nancy out of the course without penalty.  Here, the court wrote, "We agree that an individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles."  

The More Difficult Sexting Cases We Are Likely to See:  Will School Punishments Be Upheld Where D.A.s' Punishments Fail?

All in all, then, the Third Circuit's decision was an important First Amendment victory. Notably, however, the court carefully steered away from any sense of what public schools can do in similar "sexting" situations.

Thus, the court wrote, "The District Attorney is not a public education official, but a public law enforcement official. We do not express a view on the propriety of this program [referring to the course on gender roles, with the required essay on why sexting is wrong] had it been offered as part of the school curriculum."

This language suggests a number of questions that are left for the future.  For the moment, let's put bullying and the non-consensual taking of photos aside, and assume instead that groups of teen friends, or teen couples, are "sexting" nude or partly-nude photos of themselves to each other's cellphones.  Let's assume, also, that every teen involved knows what is going on and is fine with it -- and that no prosecutions are on the horizon.   Finally, to make the First Amendment aspect of the case even stronger, let's also assume that the students are art students, who see no difference between their photo exchanges and, say, sketching nude models and sharing the sketches with each other. 

Can a public school ban this limited subset of "sexting"?   Can a public school require students to author essays condemning this kind of sexting, even if the students disagree strongly with what they are writing?    These are the kinds of questions that the Third Circuit decision invites, and that we may well see being raised in the future. 


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read . . . a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter. It also includes her article from Animal Law, "A Contractarian View of Animal Rights."

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