Genesee Valley Chapter — Sexting the Fourth Amendment

Sexting the Fourth Amendment

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on June 24, 2009. Imagine you are the parent of a teenager, who most likely possesses a cell phone and access to the Internet. Combine that with raging hormones and you have a recipe for — the transmittal of nude or seminude photos through a cell phone. The same photos may be posted on social networking sites, such as MySpace. Across the country one out of five teenagers admits to posting or sending nude or seminude photos with their cell phones, according to a recent survey by The National Campaign to Prevent Teen and Unplanned Pregnancy. What happens if a school confiscates a phone and, without the consent of the student, discovers nude photos in it? Some administrators will refer the offending student to his or her parents. At the other extreme are those who turn over the student to the local authorities, who may charge the teenager with a violation of the child pornography laws. The most publicized case to date involves three high school girls from the Tunkhannock School District in northeastern Pennsylvania. Their cell phones, and the phones of several other students, were confiscated in October of 2008. Unmindful of Fourth Amendment protections, administrators examined the contents of the cell phones. They discovered pictures of two girls from the waist-up wearing just bras and a third girl with a towel wrapped just below her breasts. Administrators reported the pictures to local law enforcement. The district attorney investigated the students in the pictures and those who possessed the pictures but not those who distributed the pictures. He found the pictures “provocative,” as bad as an underage girl wearing a bikini on a beach in his opinion. The district attorney demanded the students attend a 5-hour course about pornography and sexual violence, which he created. They had to write a paper on why what they did was wrong. Finally, they would be placed on probation, a condition of which was random drug testing. Anybody who did not accept the deal would be charged with sexual abuse of a minor, a felony. If convicted, some students could face prison. Their names could be put on the state sex offender registry. Seventeen of the students relented, but three girls questioned the legality of the “deal” and sought the assistance of the ACLU to file a lawsuit against the district attorney. The girls claimed that the district attorney was “retaliating” with the threat of felony charges because they had exercised their First Amendment rights in a way that he disapproved of. They had exchanged non-obscene pictures through a private medium. Furthermore, forcing them to write a paper, taking a position contrary to their views, was a form of “compelled speech.” The parents of the girls joined in the suit. They claimed that the district attorney’s reeducation program violated their Fourteenth Amendment “substantive due process right as parents to direct their children’s upbringing.” The girls also contended that the child pornography charges would be baseless as they had no criminal intent. On March 30, 2009, the court hearing the case found merit to the claims and temporarily enjoined the district attorney from bringing charges against the girls. Miller v Skumanick, No. 3:09cv540 (M.D. PA 2009). The ACLU could have but did not assert a violation of the privacy rights of the girls. Lee Tien, a staff attorney for the Electronic Frontier Foundation (EFF), a nonprofit organization that is known for its work around technology and the Constitution, contends that if school administrators “confiscate the phone, (it is) reasonable to hold it for the day and return it, but there’s a serious question of whether that justifies going through the cell phone.” In a similar situation in Colorado, the Boulder Valley School District went so far as to change its policy handbook to state that parents and/or students had to give written consent before school officials examined students’ cell phones or other electronic gadgets. We hope that administrators, district attorneys, and even legislators will look at this issue more rationally. They should follow the example of the Vermont State Legislature. It amended the state’s child pornography laws to shield minors from the dire consequences of a sex offender conviction. Some school districts across the country are doing their part. They are organizing awareness programs to take a proactive approach to what is another aspect of growing up in a technologically-advanced society bombarded with sexually-powerful images.