About a year ago, three girls fought charges of child pornography -- of themselves -- for refusing to attend 10-hour class on pornography and sexual violence after they were arrested for taking pictures of themselves en deshabille.
Now, the district court not only barred the district attorney from initiating any criminal charges against the girls, but criticized the district attorney’s reliance on the girls’ presence in the photographs as a basis for the potential charges, noting that their presence did not prove they possessed or transmitted the photo, according to an article in the New York Times.
However, the Third Circuit Court did not address the issue of whether taking and transmitting the pictures could be considered free speech, according to an article in the Philadelphia Inquirer.
The case was the first appeals case to address whether free-speech law protected "sexting" -- sending sexually explicit messages or photos to cell phones.
The district attorney had told a group of parents and students that he had the authority to prosecute girls photographed in underwear, like the three girls, or even in a bikini on the beach, because the photos were "provocative," according to the American Civil Liberties Union, which represented the girls and their mothers before the appeals court.
In general, however, states are starting to move away from such draconian laws, according to a different article in the New York Times. "Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators," the Times said. Instead, some of the 14 states are considering making sexting a misdemeanor or a juvenile offense.
"It just doesn’t make sense that in a lot of the sexting situations, the pornographer and the victim are one and the same person," the Times quoted Amy Adler, a law professor at New York University, as saying.