Sexting Subterfuge – Miller v. Skumanick Decided

The long awaited decision in the first sexting case to reach a federal appeals court was issued yesterday by a unanimous Third Circuit. The verdict: “appearing in a [sexting] photograph provides no evidence as to whether that person possessed or transmitted the photo.”

In other words, as I correctly opined here in December, a minor depicted in a sexting image is only guilty of a child pornography offense if the prosecutor can prove that they possessed or distributed their image; a teen’s appearance in a sexting image (even an image of bona fide child pornography) is not, in and of itself, a violation of current law.

As the Third Circuit stated:

Assuming that the sexual abuse of children law applies to a minor depicted in the allegedly pornographic photograph, and that the photo in question could constitute a “prohibited sexual act” (issues on which we need not opine), we discern no indication from this record that the District Attorney had any evidence that Doe ever possessed or distributed the photo.

The Court threw out the prosecutor’s case against the sexting students for reasons totally unrelated to the content of the images basing its decision instead on First Amendment constitutional rights related to the prosecutor’s threats of prosecution, the imposition of a mandatory educational class and a parent’s fundamental Constitutional right to control their child’s education (concerning the prosecutor’s proposed class).

Bottom line: despite the use of the term “First Amendment Rights,” the Court’s Constitutional analysis is completely unrelated to the content of the sexting images. The Court side-stepped the entire issue at the heart of the sexting debate by basing its decision on procedural issues and not the substantive issues of whether or not sexting constitutes child pornography and whether or not sexting teens have a Constitutional right to produce lurid images of themselves.

The question of whether or not sexting = child pornography will have to wait for another day which will certainly come since this fad shows no signs of abating.

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