Sexting, Social Media, and The First Amendment

The First Amendment to the United States Constitution prevents a district attorney, or any other type of state or federal prosecutor from bringing a criminal action against an individual for speech. U.S.C.A. Const. Amend. 1. Speech, under the Constitution, includes any form of written, verbal or non-verbal communication. In a 1973 decision The United States Supreme Court ruled that that the First Amendment does not apply to obscene material. See Miller v. California 93 S. Ct. 2607 (1973).

The Court did, however, indicate that the freedom of speech under the First Amendment requires that the government carefully evaluate all forms of expression and only suppress speech which fails to demonstrate any redeeming “social value”. While this decision permitted the distribution and possession of certain forms of pornography and implicitly prohibited child pornography, it failed to explicitly establish judicial precedent on this issue. The Court did however address child pornography in 1982. Using the foundational principles of its Miller decision, the Court ruled that child pornography is not permitted any type of Constitutional protection. See. New York v. Ferber, 102 S. Ct 3348 (1982).

The First Amendment, however, is not limited to permissible forms of speech. It also covers an individual’s constitutional right not to speak or compelled speech. It is in this often forgotten portion of the First Amendment that a potential legal defense derives for minors threatened with prosecution over Sexting and or Social Media images. Prosecutions based on social media or sexting are grounded in the premise that child pornography is illegal regardless of the intent of the possessor or distributor. While the burden is on the government to prove the elements of an offense beyond a reasonable doubt, the threat of a criminal conviction often leads to plea negotiations.

Plea negotiations in this area often require that the accused minor agree to participate in educational programs and/or other government sponsored classes. In March 2009 a Pennsylvania district attorney (Wyoming County) threatened criminal prosecution against a group of female teenagers as the result of sexually suggestive text messages and images. The district attorney, however, offered each of the teens a plea agreement which required them to attend a “re-education program” designed to address their behavior. The images in question did not involve any nudity but pictured the women posed “provocatively”. The district attorney informed the parents that if their children refused to participate in the program he would bring formal criminal charges.

While most of the parents agreed to the plea terms, one parent of two of the young women refused the plea offer. The parent further claimed that the images did not meet the definition of child pornography and that her daughters did not violate any criminal law.

The parent filed a Title 42, Section 1983 action against the district attorney on the basis that the “re-education program” violated her daughters constitutional rights against compelled speech and her substantive due process right to be free of state interference with regards to the upbringing of her children. See USCA Const. Amend. 14 and Miller v. Skumanick, 605 F. Supp. 2d 634.

Title 42, Section 1983 of the United States Code provides that any citizen who is deprived of any Constitutional protection by any law and/or government agent has right to pursue a civil action against the liable party. This federal statute permits an individual to pursue monetary and/or injunctive relief. Miller, the parent, brought this action in United State District Court for the Middle District of Pennsylvania (Federal Court) and sought an injunction to prohibit the prosecution of her daughters. An injunction is a restraining order which prohibits an individual or a group from proceeding with an activity. In this case, the parent sought to restrain the district attorney from initiating child pornography charges against her daughters. The Federal Court ruled in favor of the parent and prohibited the prosecution.

Despite the outcome of the 2009 Miller case, parents must proceed with extreme caution in these matters. It is important to understand that Miller case contains facts which supported the parent’s action against the district attorney. While the Federal Court cited the First Amendment protections in this decision it also pointed out that the images did not constitute those prohibited under Pennsylvania law; this is a key point. Even if the district attorney was permitted to proceed with the prosecution he would have more than likely failed to convict the young women of a crime. Given the district attorney’s weak case, the Federal Court viewed the threat of prosecution as retaliation for the minor’s refusal to participate in the “re-education program”. The “re-education program” equated to compelled speech which violated the minors’ First Amendment right and the parent’s due process right to control the upbringing of her children. This constitutional argument, analysis and application demands a strong command of the First Amendment and the specific of facts of the case. It is not applicable to all cases but it does provide a family in such a situation with potential defense options.