A recent decision of the United States Court of Appeals for the Third Circuit—one of 12 federal appellate courts just one step below the Supreme Court—puts into perspective the American system of censorship. The case involves a limited point of law, but speaks volumes about “America’s War on Sex,” in author Marty Klein’s vernacular.
Sexual abuse of children (formerly “statutory rape”) has always been a hot-button issue. The topic brings to the public’s collective mind images of derelicts in trench coats, giving candy to prepubescent girls, luring them into abandoned buildings where they are convinced that “intergenerational sex” is perfectly normal. That has evolved considerably. The segment of our society that brought us the Volstead Act (Prohibition) also believes it to be God’s edict that sex be only between a man and a women who are married to each other, and then only for the purpose of procreation. And if there cannot be laws against what they perceive as “unauthorized sex” (Thanks again, Marty!), they will take the best shot that they can, which seems to be a law against anyone under 18 having sex.
Anti-child-abuse laws, however, do not quite square with reality. If they were strictly enforced, a majority of high school students these days would probably be felons by the time they graduate, or at least so surveys establish.
Laws prohibiting the sexual abuse of minors (it’s not just children anymore) begat laws against child pornography, an exception to the First Amendment if it’s a visual depiction of a minor engaged in “sexually explicit conduct” as first approved by the Supreme Court in New York v. Ferber (1982). Significantly, the federal child pornography laws increased the “age of minority” in the early 1980s from 16 to 18. (In fact, there later was a move afoot to raise it to 21 by the Volstead folks.)
States all have anti-child-pornography laws approximating the federal one, and Pennsylvania is no exception. And like most such laws, violation always is a felony.
This column, since long before the internet became commonplace, has advanced the proposition that technology is censorship’s worst enemy. The idea first came up when China experienced the protests that were punctuated by the Tiananmen Square standoff—one of the most famous images in history.
What happened during that period was that copies of news photographs published from around the world were being faxed to people in China. Learning of this, the Chinese government undertook to confiscate all of the country’s fax machines. A similar attack currently is taking place there against Google.
There is almost no such thing these days as a cell phone without a camera, and very few cell phones are incapable of sending photos to other cell phones—and materially all high school students carry cell phones. And if anyone had forecast that technology 20 years ago, the first thing most people would have imagined is sending sexy pictures. (Indeed; ever since this camera-phone phenomenon came into being, gentlemen’s clubs have experienced enormous problems trying to prevent customers from posting pictures of their entertainers online.)
So, as you certainly are aware, the obvious has now become a fad, called “sexting.” If you think about it, if a sexting photo is sufficiently revealing, it qualifies as child pornography.
One thing should be clear: The authors of the child pornography laws did not have in mind the idea of minors sexting photos of themselves. Well, maybe not.
The borough of Tunkhannock is located in north-central Pennsylvania, and is the home of the Tunkhannock School District. Tunkhannock, which is located near the New York border and 25 miles northwest of Scranton, boasts a population of roughly 2,000, supported by a Proctor & Gamble plant. It has many churches.
The school district discovered photographs of “nude and semi-nude” teenagers—some were students there—on students’ cell phones. Exactly how that was discovered is not altogether clear.
Enter the district attorney, threatening to prosecute the offending students for child pornography violations. But there was a deal: If the students would pay a $100 fee to attend what the DA called a six- to nine-month “educational program” (a brain-washing, in your parlance), the students could escape felony prosecution.
The ACLU was not amused. A lawsuit was filed in federal district court there, resulting in an injunction. The DA appealed to the federal court of appeals and lost again.
Importantly, the Court of Appeals respected the parents’ rights to decide what education their children receive, especially in the area of marriage and family life. The DA cannot use threats of criminal prosecutions to coerce parents into a particular “educational’”course on sexual morality for their children, the court held.
Moreover, minors have First Amendment rights, too. And, because a part of the “educational program” was that the minors would be required to explain how what they did was wrong and why, the court found that to be unconstitutionally compelled speech.
There is a parallel to this situation in the federal criminal justice system in general and obscenity prosecutions in particular. In child pornography prosecutions, like other federal crimes, the punishments have been so ramped up by the sentencing guidelines that everyone is forced to make a deal. Obscenity prosecutions are no different. Compare the obscenity cases that have gone to trial with those where a deal was made.
This Tunkhannock situation is a simple example of a district attorney installing himself as a dictator. Thanks to the ACLU and to our independent judiciary. [Miller v. Mitchell, ___ F.3d ___, 2010 WL 935776 (3rd Cir., March 17, 2010).]
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
This article originally ran in the May 2010 issue of AVN.
