Appeals court considers: Is “sexting” pornography?; First Such Case

Background: Currently there is a federal case being heard in Philadelphia between George Skumanick Jr. who is the Wyoming County [Pennsylvania] prosecutor and the American Civil Liberties Union. The federal appeals court is hearing the case of three Pennsylvania teenagers who were charged with child pornography. The three girls were caught circulating photos from their cell phones of themselves. The girls were either topless or with just a bra on. These photos were then circulated to their classmates in their school. The term for this is “sexting.”

from – For the estimated 15 percent of teens who have a risque photo of themselves or a friend on a cell phone, here’s some news:

A federal appeals court in Philadelphia may soon decide whether they can be prosecuted under Pennsylvania child pornography laws merely for appearing in a “sexting” cell-phone image.

The case involves photos of two 12-year-old-girls in training bras, and a 16-year-old wrapped in a towel, with her breasts exposed, as she leaves a shower. The latter photo was central at yesterday’s hearing before the U.S. Court of Appeals for the Third Circuit.

Sexting is the practice of using cell phones to send sexually provocative photos of oneself.

The girls from Wyoming County, northwest of Scranton, have not been accused of disseminating the photos, which have not been made public.

In 2008, then-Wyoming County District Attorney George Skumanick Jr. [pictured] threatened to prosecute the girls unless they attended what their lawyers called “re-education” classes and wrote an essay about why sexting was wrong. In response, the girls and their parents won a lower court ruling that blocked the district attorney, who appealed.

Yesterday, before the three-judge panel, a lawyer for Skumanick said the intent was a legitimate effort to protect the teens from themselves and potential child predators, and compared it to other state laws – such as motor-vehicle rules – that regulate teen behavior.

That outraged ACLU lawyer Witold J. Walczak, who argued that the prosecutor cannot accuse the girls of being pornographers under the guise of protecting them from pornographers.

“We’ve been mystified how anyone can look at these photos as pornography,” he said. “These photos are not even close calls.”

This is the first appeals court case concerning sexting, the reach of the state child-pornography law, and the First Amendment, said Scranton lawyer Michael J. Donohue, who is representing Skumanick.

Donohue argued that prosecutors have the right to prevent behavior by a child that could endanger that child. Children “are putting themselves and other children at risk” of being exploited by sex offenders who may see the photographs, he said.

Skumanick lost his bid for reelection last year, and the new district attorney has argued for the right to bring charges, said Walczak.

The judges gave no indication as to when they would issue a decision.

While sexting gets talked about a lot and is the subject of public service commercials on MTV warning teens against it, a study released last month by the Pew Research Center’s Internet and American Life Project said only 4 percent of teens reported they had sent out sexually explicit photos or videos of themselves.

Some 15 percent of cell-phone-owning teens ages 12 to 17 had received nude or nearly nude photos by phone, the report said.

After a number of sexting photos were found on student phones in 2008 in the Tunkhannock School District, northwest of Scranton, teachers notified the district attorney.

Skumanick threatened to charge 16 teens with child pornography if they did not attend a recommended after-school education course and write the essay.

Most agreed, but the three girls and their parents went to a lower federal court, and the judge last year issued an injunction preventing Skumanick from either forcing them to take the class or charging them with child pornography. Requiring them to take what the ACLU called a “re-education” class violates the First Amendment, said the attorneys.

The appeals court will also have to decide whether it was appropriate for the lower court to intervene so early in a potential criminal case.

MaryJo Miller, 45, the mother of one of the two teens in the training-bra photo, said outside the courtroom that the photo was not even taken with a cell phone.

Rather, a third girl took it with a digital camera, and years later it appeared on local teens’ cell phones. Her daughter, now 16, made the decision to go to court, but “is getting a little tired of its dragging on,” said Miller, who works for the school district as a teacher’s assistant.

Asked her opinion of the photo, Miller said it merely looked like two children being “goofballs.”

In the Pew report, researcher Amanda Lenhart wrote that teens use sexting “as a part of or instead of sexual activity, or as a way of starting or maintaining a relationship with a significant other.”

Then she added the obvious: “… and they are also passed along to friends for their entertainment value, as a joke or for fun.”

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