In the first “sexting” decision by a Federal Appeals Court, the United States Court of Appeals for the Third Circuit ruled that prosecutors could not charge a teenager who sent sexually explicit photos of herself on her phone with child pornography.
In Michigan, sexting can be a violation of child pornography laws, which are felonies, and result in life-long consequences, such as having to place your name on the sex crimes registry.
In Miller v. Mitchell, the Third Circuit determined that the prosecutor could not charge the 16-year-old girl at issue in the case with child pornography simply because she appeared in the pictures without any evidence she had engaged in distributing it.
The court did not address whether those underage the age of 18 have a First Amendment right to send sexually explicit messages or photos through their cell phones. According to the New York Times, the legal director of the American Civil Liberties Union of Pennsylvania who represented parents stated “It does not resolve all of the constitutional issues implicated in sexting prosecutions, but it’s a terrific start for civil liberties.”
Recently, there has been a huge increase in child pornography cases in both the state and federal courts as the result of sexting charges. Often the child pornography charges stem from one teenager sending a sexually explicit photo of him- or herself to a boyfriend or girlfriend. Hopefully the Sixth Circuit will soon follow the Third Circuit’s lead and allow parents to block the prosecution of their children on child pornography charges.