Sexting Students Strike Back

Whether it’s just a fad or something more, the sexting issue continues to make headline news. Here’s an interesting twist to the teen craze from where else but Pennsylvania.

Today, child porn advocates from the ACLU of PA will ask a federal judge in Scranton to issue an injunction to protect three teenage girls from the threat of criminal charges for using their cell phones to take and send semi-nude images of themselves.

The suit accuses the Wyoming County DA of violating the three girls’ First Amendment rights and seeks a court declaration that the images “are not child pornography or any other crime.”
The DA said he considered the photos “provocative” and threatened that unless the girls attended a 10-hour class dealing with pornography and sexual violence which he created, he would file criminal charges against them including sexual abuse of a minor and possession or dissemination of child pornography. If convicted, the girls could serve time in prison and would probably have to register as sex offenders.

Seventeen other students caught up in the sexting sting—13 girls and 4 boys—accepted this deal. All of them were either caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

According to the lawsuit, one of the images shows the plaintiffs from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign.
The other image shows another plaintiff standing upright with a white towel wrapped tightly around her body just below her breasts.

When the girls’ lawyers asked to see the images, the DA refused contending that “they are ‘child pornography’ and that he would be committing a crime by sharing a copy.”

The images came to light in October 2008 when school district officials confiscated several students’ cell phones and discovered images of scantily clad, semi-nude and nude teenage girls, many of whom were enrolled in the district. The school then turned the photos over to the DA.

Sexting is not a sign of deviance or a future indicator that teens will become sex offenders, said Christopher J. Ferguson, a psychology professor at Texas A&M International University who studies how media and technology affect youth.

Mr. Ferguson called sexting a “normative, not wise, sexual behavior on the part of these kids. We would have done it, too, if we would have had the cool phones. We didn’t do it because we didn’t have the technology.”

This is actually an interesting lawsuit and could significantly effect the law concerning visual representations of underage nudity. Child pornography is not protected by the First Amendment, which is the basis for this lawsuit. Child pornography jurisprudence has not contemplated “self-created” child pornography. Privacy interests as well as child exploitation are the cornerstone of our current federal child pornography laws. Sexting places these principles in a whole new context.

Most important, however, is that in order for a visual depiction to be considered child pornography it must contain a “lascivious exhibition of genitals.” Courts have interpreted “lascivious” as follows:

  1. whether the focal point of the pictures is on the child’s genitals or pubic area
  2. whether the setting is sexually suggestive. For example, in a place
    or pose generally associated with a sexual activity
  3. whether the child is depicted in an unnatural pose, considering the age of the child
  4. whether the child was clothed or nude
  5. whether the pictures suggest sexual coyness or willingness to engage
    in sexual activity
  6. whether the pictures are intended or designed to elicit sexual response
    from the viewer
  7. whether the picture portrays the child as a sexual object
  8. the captions on the pictures

Nudity is not a pre-requisite for finding that an image is child pornography. Even if the images of these sexting girls are not child pornography, they may still violate criminal obscenity laws. Note that these are federal and not Pennsylvania or other state standards.

Juries, and the public, have the experience and ability to make this determination. No expert testimony is required. So what do you think? Have these girls violated federal child pornography laws? If not, are these images obscene? Or do the girls have a First Amendment right to sext? What if they were pre-pubescent girls and not teenagers (trust me folks that’s next)? A federal judge wants to know . . .

For additional information see:

Complaint filed in Miller v. Skumanick on March 25, 2009
The New York Times
The Pittsburgh Post-Gazette

8 Replies to "Sexting Students Strike Back"

  • James R. Marsh
    March 26, 2009 (1:26 pm)

    Make sure to READ THE COMPLAINT (link above). Nothing can put this issue into perspective better than the lawsuit itself (i.e., ignore all my commentary and go right to the primary material!)

  • Jess
    March 26, 2009 (1:34 pm)

    I am blogging about this, James, right now! No, these images do not strike me as pornographic/obscene, although the one with the towel is pushing it a little more than the other one. Still, either image could be seen as little more than an edgy fashion shot given the right context.

    As you know, as a mother, I am really worried about this. My daughter is in Grade 6 and I just learned that a couple of girls took a shot of a boy’s bum–fully clothed. It was perfectly innocent but it’s the kind of thing they get up to. This is going to happen more and more! The DA doesn’t get it. Ferguson does. I’m seriously thinking of volunteering at my daughter’s next school (jr. high) to give a little talk on this to the 7-8 classes. It’ll embarrass the hell out of her but better safe than sorry (and that goes for any kid–I wouldn’t want to see any kid get swept up in this).

    Only through publicity around these ridiculous charges will this “normative, non-wise” practice cease. And yes, I think these girls need a talking to but that’s besides the point. arrugghhhh!

    OK, I’ll read the complaint too.

  • James R. Marsh
    March 26, 2009 (9:28 pm)

    This just in – a 14 year old girl faces a federal mandatory minimum five year prison sentence for child pornography possession and distribution after she allegedly posted nearly 30 nude pictures of herself on The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment. According to police, more arrests may be forthcoming.
    For more on this story visit

  • James R. Marsh
    March 26, 2009 (9:38 pm)

    See the live video report on today’s hearing. No decision on the TRO is expected until next week.

  • James R. Marsh
    March 27, 2009 (6:14 pm)

    From the New York Times:

    A federal judge said at a hearing on Thursday that “serious constitutional issues” were raised in a lawsuit filed by three teenage girls and their mothers against a county district attorney who threatened to arrest the students on pornography charges after seminude photographs of them appeared on other students’ cellphones.

    “It seems like the children seemed to be the victims and the perpetrators here,” the judge, James M. Munley, told a lawyer for the district attorney, George P. Skumanick of Wyoming County. “How does that make sense?”

    The lawyer, A. James Hailstone, said state law “doesn’t distinguish between who took the picture and who was in it.”

  • James R. Marsh
    March 30, 2009 (9:58 pm)

    Earlier today a federal judge temporarily blocked the DA from filing child pornography charges in this case.

    According to the AP the judge’s decision to grant the teens a temporary restraining order prevents DA Skumanick from filing charges while the lawsuit proceeds.

    The girls “make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs’ argument that (they) were not involved in disseminating the images is also a reasonable one,” the judge wrote.

    Under Pennsylvania’s child pornography law, it’s a felony to possess or disseminate photos of a minor engaged in sexual activity, “lewd exhibition of the genitals” or nudity that is meant to titillate.

    The judge said he “offers no final conclusion on the merits of plaintiffs’ position” and scheduled a hearing on the case for June 2.

  • oldude1941
    September 4, 2009 (11:45 am)

    Ah – Democracy – it goes to the heart of the matter when it comes to liberty of self, and freedom of expression. As Democracy “ages”, it appears that it’s participants seek to deliniate and dilute the meaning to fit increasingly smaller and smaller segments of the body politic.
    So – we are getting to the point of “NIMBY” [Not In My Back Yard]for many segments of the population to the other extreme of – you are stepping on my so-called “civil rights”.
    I cannot wait for someone or some group to ask for a National Holiday for left-handed, one-eyed, under six feet, vegetarian, animal lover’s, PETA advocates. You get my drift.

  • po-po
    January 18, 2010 (1:56 pm)

    I am a police officer with over 14 yrs experience. I am responding to the 14 year old who posted nude pictures on her “myspace” for her boyfriend. I do NOT agree with criminal charges on this young girl. They are pictures of herself, she did not post them for sale or any other such form. Is she smart? NO, but is she human and acting her age, YES!.. pornography is when someone takes a naked picture of a child for sexual gratification and for money. This little girl is not a sex offender. I think the only law she has violated is obscenity. She posted her pictures of herself nude in a place where certain public has the ability to view.

    As for the sexting, if someone is sending or posting nude pictures of a child for sexual gratification then it is a violation of the law, but these kids are acting like their age. If anyone has been up to date with teens today, they are not the same breed of teens as we were growing up. They use sex as an extra curricular activity now and teen sex is rampid today.