Amy Adele Hasinoff, "No right to sext? Recent federal case avoids considering teens’ right to freedom of expression"

Saturday, May 15, 2010

posted under , , by Unit for Criticism
[Each year the Unit for Criticism provides travel grants to select graduate student affiliates, inviting awardees to publish a post on Kritik about their paper. Below Amy Hasinoff,, a grad student affiliate in ICR, writes about a conference paper she delivered in fall.]

No right to sext? Recent federal case avoids considering teens’ right to freedom of expression

Written by Amy Adele Hasinoff (Institute of Communications Research)

In early 2009, parents of nearly twenty students at a high school in Tunkhannock, Pennsylvania received a letter from district attorney George Skumanick explaining that school officials had found sexually explicit photos of classmates on some of the students’ cell phones. The students appearing in or possessing the photos could face child pornography charges unless they agreed to complete an education program and serve six months of probation, including random drug testing.

Most of the students agreed to a version of Skumanick’s deal, while Marissa Miller, two other students, and their parents, sought the help of the Pennsylvania American Civil Liberties Union. In March 2009, they obtained a restraining order preventing the prosecutor from filing child pornography charges, and in March of 2010, a federal appeals court upheld the decision.

This case did not address the girls’ right to freedom of expression, but instead succeeded on the fact that forcing the girls to attend Skumanick’s education program would violate two constitutional rights: (1) the parents’ right to control the upbringing of their children and (2) the girls’ right to freedom from compelled speech. This strategy was indeed successful, but the case sets a disturbing precedent keeping adolescents’ right to freedom of expression off the table. Since this crucial issue is rarely debated in discussions about sexting, I argue that we need seriously to consider adolescents’ right to sext.

Child pornography laws make no exception for minors under 18 years old who create sexually explicit images of themselves. In a state like Illinois, where the age of consent is 17, two 17-year-olds can legally have sex with each other, but if they create a digital image of their sex acts, even for their own use, this depiction is technically child pornography. The ACLU can’t defend the girls’ First Amendment rights to sext without fundamentally challenging the constitutionality of child pornography laws.

Instead, the ACLU disputes the prosecutor’s claim that the photos qualify as child pornography, arguing that the images were not sexual and do not, as Pennsylvania law specifies, depict “nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” In their press release, the ACLU describes the images: “One [photograph] shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym) … standing outside a shower with a bath towel wrapped around her body beneath her breasts.”

In their argument before the federal appeals court, the ACLU maintains that the topless photo of one of the girls is “an innocent artistic image of a minor in a state of simple partial nudity, not a sexually provocative image intended to titillate.” A legal analyst explains that the appeal court’s final decision in favor of the girls both relies on the assumption that “any prosecution on child-porn-related charges would be invalid [and] … simultaneously disavows any [explicit] position on that question.”

By avoiding this discussion, the court avoids considering if child pornography laws, first drafted in the late 1970s well before the ease and availability of digital image production and distribution technologies, might pose an overbroad and unconstitutional limitation on young people’s first amendment rights.

Instead of arguing that minors deserve the right to freedom of expression, the ACLU’s press releases and public statements suggest that sexting teens should not be prosecuted because they are too immature to be held accountable for their actions. Many of their public comments about the case assert that teens are immature and foolish, which mobilizes public sympathies, but puts the ACLU in the strange position of seeking to protect some of teens’ legal rights while simultaneously affirming that teens are not worthy of the same legal rights as adults. In a CNN interview, anchor Mike Galanos (image right) asks lead ACLU attorney in the Miller case, Witold Walczak: “You’re not saying—I want to be clear about this—that kids have the right to sext,” to which Walczak replies that he agrees “absolutely” that teens do not have the “right to sext.” Galanos continues: “It’s good to send them the message: it’s not right, girls, you’re laying the groundwork for something that could be worse down the road.”

The ACLU press release, which was widely used in newspaper articles about the case, quotes Walczak: “These are just kids being irresponsible and careless; they are not criminals and they certainly haven’t committed child pornography.” A Wired article quotes Walczak: “Teens are stupid and impulsive and clueless … But that doesn’t make them criminals” Attempting to garner sympathy for young sexters, Walczak insists with these statements that because teenagers are “careless, clueless, stupid, and impulsive,” they should not be held legally accountable for their actions, arguing that adolescents have no criminal intent and barely have the ability to judge their own actions.

Since at least 15 states are in the process of writing new sexting legislation, it is crucial to examine how we make sense of sexting. I argue that it is counter-productive to understand sexting as “innocent and nonsexual” or as the result of “impulsiveness and carelessness.” Instead, we should look at sexting as an opportunity to redefine our skewed perceptions of teen girls’ sexuality and to reconsider our inconsistent child pornography and age of consent laws.

While sometimes images are distributed among teenagers without the permission of the person depicted, laws do not currently distinguish this unacceptable behavior from consensual sexting. Rather than criminalizing adolescent sexual self-expression, we need to create new legal and educational policies that acknowledge and celebrate safe, consensual teenage sex acts, and demand that teens should have the right to sext.


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