“Sexting” – the practice of sending semi-nude photographs, via cellular telephones or over the Internet -is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it.
School District officials confiscated several students’ cell phones, examined them and discovered photographs of “scantily clad, semi-nude and nude teenage girls.” The School District reported that male students had been trading these images over their cell phones.
The School District turned the phones over to the District Attorney (“DA”) and he began a criminal investigation.
The DA stated publically that students who possess inappropriate images of minors could be prosecuted under state law for possessing or distributing child pornography. The DA pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. Furthermore, if found guilty of these crimes, minors would probably be subject to registration as sex offenders under State Registration of Sexual Offenders Act (“Meghan’s Law”), for at least ten years and have their names and pictures displayed on the state’s sex-offender website.
The DA sent letters to the parents of approximately twenty students, on whose cell phones the pictures were stored and to the girls shown in the photos. He did not send the letter to those who had disseminated the images.
The letter informed the parents that their child had been “identified in a police investigation involving the possession and/dissemination of child pornography.” The letter also promised that the charges would be dropped if the child successfully completed a six- to nine-month program focused on education and counseling. The children and parents were invited to a meeting to discuss the issue. The letter warned that “charges will be filed against those that do not participate or those that do not successfully complete the program.”
The DA held the meeting at the County Courthouse and reiterated his threat to prosecute unless the children submitted to probation, paid a $100 program fee and completed the program successfully. When asked by a parent at the meeting why his daughter–who had been depicted in a photograph wearing a bathing suit–could be charged with child pornography, the DA replied that the girl was posed “provocatively,” which made her subject to the child pornography charge. When the father of one girl asked DA who got to decide what “provocative” meant, the DA replied that he refused to argue the question and reminded the crowd that he could charge all the minors that night. He had offered them a plea deal: “these are the rules. If you don’t like them, too bad.”
The program is designed to teach the girls to “gain an understanding of how their actions were wrong,” “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify nontraditional societal and job roles.” Included in the “homework” for the program is an assignment including “what you did” and “why it was wrong.” The program was initially purported to last six to nine months, but was eventually reduced to two hours per week over five weeks.
At the meeting, the DA asked all those present to sign an agreement assigning the minors to probation and to participation in the program. Only one parent agreed to sign the form for her child. The DA gave the parents forty-eight hours to agree to the offer or the girls would be charged.
All but three of the parents and girls eventually agreed to the conditions.
The remaining three girls and their parents refuse the “plea deal” and instead (with the help of the ACLU) file an action against the DA for violation of their constitutional rights.
The photographs of the three girls in question.
One photograph in question was approximately two years old, and showed Marissa and Grace from the waist up, each wearing a white, opaque bra. Marissa was speaking on the phone and Grace using her hand to make the peace sign. The girls were thirteen years old at the time the picture was taken. The DA claimed that this image met the definition of child pornography because the girls were posed “provocatively.”
Another photograph of a girl named Nancy was more than a year old and showed Nancy wrapped in a white, opaque towel. The towel was wrapped around her body, just below her breasts. It looked as if she had just emerged from the shower.
Neither of these two photographs depicted any sexual activity. Neither showed the girls’ genitalia or pubic area. The DA said the pictures were among those on the confiscated cell phones, but he would not divulge who owned the phones. The minors insist that they did not disseminate the photographs to anyone else, but that another person sent those pictures “to a large group of people” without their permission.
The lawsuit against the DA.
Count I alleges retaliation in violation of girls’ First Amendment right to free expression. The girls contend that the photographs in question are not in violation of any obscenity law and are thus expression protected by the First Amendment. The DA therefore threatens charges against them without a legitimate basis in an attempt to force the girls to abandon their constitutional rights and submit to the “re-education program,” probation and drug testing.
Count II alleges retaliation in violation of the girls’ First Amendment right to be free from compelled expression. The program in which the girls would be compelled to participate requires them to write a paper about “how their actions were wrong.” Since girls did not violate any law, this requirement is compelled speech.
Count III, brought by the girls’ parents, alleges retaliation against the parents for exercising their substantive due process right as parents to direct their children’s upbringing. Plaintiffs allege that the DA’s attempt to force their children to attend the class and participate in programs designed to let them “gain an understanding of how their actions were wrong,” “gain an understanding of what it means to be a girl in today’s society,” and “identify non-traditional societal and job roles” infringes on their right to control the upbringing of their children.
You are the judge. How do you rule on the lawsuit against the DA?
Answer below in comments later today.
