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Sexting: Parents’ and Girls’ Autonomy Upheld

March 18, 2010

I don’t have time to read the decision this morning, so I may edit this after I have had that opportunity. However, there is a big development in this story of teens in Pennsylvania, who were wrongly threatened and badgered into participating in some half-baked re-education program by an asshole martinet of a prosecutor.

By way of quick recap, the prosecutor’s threat was to bring child porn charges against teens, including those who were the subjects of the photo. Those threats, as to some of the girls, were epic fail: the photos were not nudes and utterly did not meet the statutory definition of child porn; and the prosecutor probably can’t prove that the subjects of the photos possessed them because having the photos and being in the photos obviously do not necessarily imply each other.

Some of the teens and their parents, with the ACLU’s assistance, challenged the re-education camp bullshit. This is where my direct knowledge ends.

Over at a legal blog called the Volokh Conspiracy, which is conservatarian-oriented but very smart, they have a rundown which, in lieu of my own reading, I will quote in part:

Here’s what the court held:

(1) Requiring the education program violated the parents’ parental rights. “Jane Doe objects to the education program’s lessons in why the minors’ actions were wrong, what it means to be a girl in today’s society, and non-traditional societal and job roles. She particularly opposes these value lessons from a District Attorney who has ‘stated publicly that a teen[]age girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute.’ The program’s teachings that the minors’ actions were morally ‘wrong’ and created a victim contradict the beliefs she wishes to instill in her daughter.” “[A]n individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter — the ‘responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship’ — was interfered with by the District Attorney’s actions.”
The court distinguished education provided by a school, partly because the prosecutor “is not a public education official, but a public law enforcement official,” and partly because parents may choose to send a child to private school. The court did not discuss whether similar programs could be made requirement curriculum for all private schools.

(2) “Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell’s counsel described at oral argument, ‘[w]hat it means to be a girl; sexual self-respect, [and] sexual identity.’ We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. ‘[W]hat it means to be a girl in today’s society,’ while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.”

(3) Threatening to prosecute the children for refusing to attend the education program interfered with the parents’ parental rights and the children’s rights to be free of compelled speech, because it threatened governmental retaliation for the exercise of constitutional rights.

(4) But this apparently is true only if the prosecution also lacked probable cause, given the Court’s ruling in Hartman v. Moore (2006). If the prosecutor had probable cause to prosecute, he could have done so if he was also motivated by the girls’ refusal to participate in the education program (and apparently could therefore have threatened to prosecute them if they didn’t participate in the program).

So what can we make of this? Items 1 and 2 seem to announce potentially quite broad principles: The government may not compel children to go through various educational programs — at least value-laden ones such as the one involved here — or threaten retaliation if they don’t go through the programs.

But item 4 dramatically limits the scope of that, at least when it applies to alternative-to-prosecution programs such as these. How much precedential effect will items 1 and 2 have when item 4 is inapplicable, for instance when (1) the state imposes some mandatory curricula on private schools as well as public ones, or (2) the state threatens the withdrawal of privileges (say, a driver’s license, or access to some government program) rather than a criminal prosecution? Not at all clear. I’d love to hear more thoughts on this, especially from people who are familiar with this general area of the law. (Plus I hope to blog more about this later myself as well.) But in any case, I wanted to pass this along, since I expect many of our readers will find the parental rights and free speech issues here to be quite interesting.

[Emphasis supplied.]

If I have a different reaction to the opinion, I’ll write about it. I am really interested in the stand the Court took for minors’ and parents’ right to their own values. That cuts both ways, of course, and I’m not going to like the values a lot of other parents convey. Such is the nature of fundamental rights.

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7 Comments leave one →
  1. March 18, 2010 9:32 am

    I’m all for expanding the sexual expression rights of teenagers – but I’m not such a big fan of bootstrapping those rights to parental rights, seen as how the latter have their roots in the idea of children being the property of their parents and the generally reactionary role of parental rights in general.

    Gregory A. Butler

  2. March 18, 2010 4:39 pm

    wait a minute — let me get this straight now. so now BEING in the photographs subjects you to possible accusations of being a child pornographer? well, i guess that makes sense — it’s sort of like how if you had the nerve to get yourself raped, you’re just as bad if not worse than those “rapists” (who were just being boys anyway, can we stop bothering them already?) so i guess that logic follows.


  3. Mar permalink
    March 18, 2010 8:46 pm

    A victory, but only a partial one. This whole mess leaves me wondering if such a prosecutor would, say, sue my mother for having pictures of me wearing a bathing suit when I was twelve. (A /bikini/ bathing suit, no less. The horrors.) Oh, no, I have copies of those pictures, whatever shall I do?

    What is this prosecutor saying, anyway? What is he trying to teach these girls, with this program of his? That the female body must be completely covered at all times? That any exposure is pornographic? I realize that I am exaggerating his likely views, but his views themselves are a gross exaggeration of the meaning of pornography and the ideas behind anti-child-porn law.

  4. Marissa permalink
    March 19, 2010 7:44 pm

    I just confused/irritated/amused as to why a middle-aged man is purporting to “reeducate” young women on ‘[w]hat it means to be a girl; sexual self-respect, [and] sexual identity” in the first place.

    What real frame of reference does this man have for the sexual identity of girls? Lots of personal experience?

    I also think there is a HUGE difference between having a person say, “I won’t do A, B, or C again” and “I was morally wrong for doing A, B, or C”.

  5. March 20, 2010 3:27 am

    We need laws to be in accord with the technologies of the day. Treating teenage pranksters as criminals because they send body-shots of themselves via cellphone is stupid. We can teach kids of the dangers involved in modern technologies without outright criminalizing and pathologizing them.

    • March 20, 2010 7:15 am

      I’m just really not into this whole moral panic about sexting – look, the “danger” is grossly exaggerated!

      When I was a teen, in the mid 1980’s, people could take naked polaroid pictures – and yes, they could be, and occasionally were, passed around to people other than the intended recipient.

      And 20 years from now, kids will be sending each other naked holograms – and some of them will end up being passed around!

      All this moral panic about sexting is just ridiculous!

      Gregory A. Butler

  6. Twist permalink
    March 24, 2010 7:27 pm

    I am a survivor who was made to pose for child porn. And you know, when I heard a representative from a local anti-rape organization say that sexting was a sex crime really struck me as weird. There is a huge difference between children being sexually curious and sexually abused. But there go the conservatives screaming “o noes! secks!”

    It’s one thing if a young girl is coerced or abused by an older person into sending or posing for pictures. It’s another thing if a kid flashes their cell phone and sends it to their crush.

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