Three Pennsylvania girls, 14 to 15 years old, and three boys, 16 or 17 years old, were charged with the manufacture, dissemination and possession of child pornography after the girls sent nude or semi-nude pictures to the male students’ cell phones via text message. In Texas, a 17-year-old La Joya School District student, Jorge Suchil, was charged with possession of child pornography after he sexted a 16-year-old female classmate. This occurred when he allegedly demanded a full nude picture of her, or else he would forward a previously sent topless photo of her to his friends. She reported him to the school’s administration, and the assistant principal soon found the picture on Suchil’s phone, which lead to the young man’s confession. “Maybe we should just relax, [Nancy] Willard says, protect children from abusers, and let schools and parents deal with sexting,” wrote Daniel Rubin in a column for the Philadelphia Inquirer. It is now a common practice for teenagers to be in constant communication with one another via text messaging. But when a “How are you doing?” turns into a sexual conversation with the exchange of explicit pictures, it is known as sexting. Some prosecutors are using child pornography and other felony charges against teenagers, while others believe sexting is protected by the First Amendment of the U.S. Constitution’s Bill of Rights. Sexting is, indeed, just another form of expression which should be protected under the First Amendment.If two consenting teenagers sext each other, that is their right, according to the First Amendment, which promises not to abridge freedom of speech. But sexting is considered unconstitutional when the nonconsensual spreading of nude or semi-nude photos occurs. Simultaneously, though, this is similar to the nonconsensual spreading of rumors. Ye the government does not prosecute teenagers for spreading rumors and so should not prosecute them for sexting.According to Lawbrain.com, sexting is the sending of suggestive material, such as photos or sexual jokes, through text messages. And a charge of child pornography can include the production, distribution and possession of photos of minors engaging in sexually explicit conduct. It is not, of course, protected by the First Amendment.In a study commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com, sexting really is prevalent among teens and young adults. It showed that “20 percent of teens, 13 to 19 years of age, have either sent or posted nude or semi-nude pictures or videos of themselves, and of their older counterpart, 20 to 26 years of age, 33 percent have sent or posted nude or semi-nude pictures or videos of themselves.”Sexting has made it easier for teens and young adults to express feelings toward others that would normally go unsaid. In the study, “22 percent of teens and 28 percent of young adults stated they are more forward and aggressive using sexual content through text and photos than in real life,” while “38 percent of teens and 40 percent of young adults stated that exchanging sexual content makes dating and hooking up more likely.”Contemporary pop culture has legitimized such behavior by displaying suggestive material, either on television shows such as Gilmore Girls, in magazines like Playboy and in advertising, particularly the Calvin Klein underwear ads. Naturally, teens want to follow suit.The argument has been made, however, that sexting is a violation of teens’ First Amendment rights. In the Miller v. Mitchell case heard by the United States Court of Appeals for the Third Circuit, on Jan. 15, 2010, a suit had been filed by “the parents of three [female minors] against a Pennsylvania prosecutor after he threatened to prosecute the [girls for] producing and distributing child pornography by sexting. The American Civil Liberties Union, representing the minors, argued that the prosecution violated their First Amendment rights,” wrote LawBrain in an article that defined sexting.While most believe this activity is potentially harmful to teens across the country, throwing teens in jail for this act will not change teen behavior.”It is both inappropriate and potentially illegal for teens to participate in sexting—especially when photos are transmitted,” said Greg Abbott, Texas attorney general, to Jason Beahm, writer of a law blog at FindLaw.com. “However, teens shouldn’t necessarily be prosecuted for the offenses. That is not the goal. Our society is not necessarily going to be improved by putting a bunch of teens behind bars.”California has its own law against sending sexually explicit photos via cell phones, according to California’s Penal Code 311.11. But the only other laws prohibiting sexting are typically state and federal child pornography laws, which, as stated above, are not protected by the First Amendment.Prosecutors say that sexting includes not only the production and distribution of child pornography, but can attract child predators if it is sent to strangers, which most teens fail to consider as they carelessly forward the photos to friends. Other ramifications include the loss of college admittance if such materials are found on the Internet. “[Sexting is] very dangerous,” said Capt. George Seranko of the Greensburg Police Department to a WPXI reporter. “Once it’s on a cell phone, that cell phone’s [images] can be put on the Internet where everyone in the world can get access to [those] juvenile [pictures]. You don’t realize what you are doing until it’s already done.” While the law has not yet caught up with technology, the act of charging a teen with child pornography offenses for sexting is unprecedented. Although the act can result in an unwarranted situation—the physical act of sexting between two teens is just a form of expression that is protected under their First Amendment rights to freedom of speech. Explaining the ramifications that result from sexting to teens is a better solution than arresting them.
Sexting: Freedom of Speech or Child Pornography?
Written By Liz Bey
•
June 29, 2016
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