Sexting: How the state can prevent a moment of indiscretion from leading to a lifetime of unintended consequences for minors and young adults

Iowa Law Review

Volumn 96, Issue 1, 2010, Pages 357-383

  Ryan, Elizabeth M ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 78651313726     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (152)

1. Colleen Carroll Campbell, Editorial, 'Sexting' Suicides Should Serve as Wake-Up Calls: Porn-Saturated Culture Misleads Teens into Believing that Exhibitionism Is Empowering, ST. LOUIS POST-DISPATCH, Dec. 10, 2009, at A17.
2. Id.
3. Id.
4. Id.
5. Complaint at 2, Logan v. Salyers, No. A0904647 (Ct. Com. PI. Hamilton County, Ohio May 8, 2009) [hereinafter Logan State Complaint].
6. Complaint at 4, Logan v. Sycamore Cmty. Sch. Bd. of Educ, No. 1:09-cv-885 (S.D. Ohio Dec. 2, 2009) [hereinafter Logan Federal Complaint]; Logan State Complaint, supra note 5, at 2.
7. Logan Federal Complaint, supra note 6, at 4-5; Logan State Complaint, supra note 5, at 2-3.
8. Logan Federal Complaint, supra note 6, at 7-8; Logan State Complaint, supra note 5, at 6-7; Mike Celizic, Her Teen Committed Suicide over 'Sexting': Cynthia Logan's Daughter Was Taunted About Photo She Sent to Boyfriend, TODAYSHOW.COM (Mar. 6, 2009), http://www.msnbc.msn.com/id/29546030/.
9. Logan Federal Complaint, supra note 6, at 8; Logan State Complaint, supra note 5, at 4; Celizic, supra note 8.
10. Deborah Feyerick & Sheila Steffen, 'Sexting' Lands Teen on Sex Offender List, CNN.COM, Apr. 8, 2009, http://www.cnn.com/2009/CRIME/04/07/ sexting.busts/index.html.
11. Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case, 32 HASTINGS COMM. & ENT. L.J. 1, 8 (2009); Feyerick & Steffen, supra note 10.
12. Richards & Calvert, supra note 11, at 8; Feyerick & Steffen, supra note 10.
13. Richards & Calvert, supranote 11, at 8; Feyerick & Steffen, supra note 10.
14. Richards & Calvert, supra note 11, at 9; Feyerick & Steffen, supra note 10.
15. Don Corbett, Let's Talk About Sext: The Challenge of finding the Right Legal Response to the Teenage Practice of "Sexting," J. INTERNET L., Dec. 2009, at 3, 3; Richards & Calvert, supra note 11, at 9.
16. This Note focuses on state responses to sexting between minors and between young adults.
17. Miller v. Skumanick, 605 F. Supp. 2d 634, 637 (M.D. Pa. 2009) (citing Complaint at 5, Miller, 605 F. Supp. 2d 634 (No. 3:09cv540) [hereinafter Skumanick Complaint]). While sexting may include text or images, this Note focuses on sexting images.
18. See supra notes 1-4 and accompanying text (discussing Hope Witsell, a minor from Florida who sent a sexting image to another minor).
19. See supra notes 5-9 and accompanying text (discussing Jessica Logan, a young adult from Ohio who sent a sexting image to another young adult).
20. Over the past year, the news media has featured sexting scandals involving several adult celebrities, including baseball player Grady Sizemore of the Cleveland Indians, golf pro Tiger Woods, and pop star Rihanna. Tamara Ikenberg, OMG! Sexting Leaves Awkward Digital Trails, COURIER-J. (Louisville, Ky.), Dec. 15, 2009, 2009 WLNR 25310112.
21. See supra notes 10-15 and accompanying text (discussing Phillip Alpert, a young adult from Florida who received a sexting image from his minor girlfriend).
22. Policy Statement on Sexting, NAT'L CTR. FOR MISSING & EXPLOITED CHILDREN (Sept. 21, 2009), http://www.missingkids.com/missingkids/servlet/ NewsEventServlet?LanguageCountry=en-US&PageId=4130.
23. For example, the subject of the photo may also take and distribute the photo. Id.
24. For example, multiple individuals may receive the photo. Id.
25. Clay Calvert, Sex, Cell Phones, Privacy, and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law, 18 COMMLAW CONSPECTUS 1, 30 (2009). For example, in the three stories discussed at the beginning of this Note, Hope Witsell, Jessica Logan, and Phillip Alpert's girlfriend engaged in primary sexting.
26. Id. For example, in the three stories discussed at the beginning of this Note, the boy to whom Hope Witsell sent her topless photo; Ryan Salyers; and Phillip Alpert engaged in secondary sexting.
27. Richards & Calvert, supra note 11, at 3 (citing Editorial, Flirting with 'Sexting' Remedy, LANCASTER NEW ERA, Apr. 3, 2009, at A8); see also W. Jesse Weins & Todd C. Hiestand, Sexting, Statutes, and Saved by the Belt Introducing a Lesser Juvenile Charge with an "Aggravating Factors" Framework, 77 TENN. L. REV. 1, 2 (2009) (discussing how some prosecutors and commentators support "complete decriminalization" of sexting while others support "equal criminalization" with child-pornography offenses).
28. It is worth noting that sexting has become such a controversial legal issue that Law & Order Special Victims Unit aired an episode that dealt with the unintended consequences of sexting in May 2009. Law & Order: Special Victims Unit: Crush (NBC television broadcast May 5, 2009).
29. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."). Prosecutors may even opt for more severe charges because they afford prosecutors a better opportunity to make deals with defendants. Weins & Hiestand, supra note 27, at 48.
30. Hannah Geyer, Sexting - The Ineffectiveness of Child Pornography Laws, JUV. JUST. E-NEWSL. (Am. Bar Ass'n Criminal Justice Section, Wash., D.C.), June 2009, available at http://www.abanet.org/crimjust/juvjust/newsletterjune09/ june09/sexting.htm.
31. Rose Afrivie, The Trouble with "Sexting" Coverage, FEMINISTING (Jan. 14, 2010, 16:36), http://classic.feministing.com/archives/019580.html.
32. This Note uses the phrase "victims of secondary sexting" to describe minors and young adults who voluntarily appear in a sexting image, distribute the image to one or more recipient(s) through primary sexting, and then learn that a recipient of the primary sexting image distributed the image to additional unintended recipients without the consent of the subject of the photo.
33. THE NAT'L CAMPAIGN TO PREVENT TEEN & UNPLANNED PREGNANCY, SEX AND TECH: RESULTS FROM A SURVEY OF TEENS AND YOUNG ADULTS 1 (2008) [hereinafter SEX AND TECH STUDY], available at http://www.thenationalcampaign.org/sextech/PDF/ SexTech-Summary.pdf. TRU, a "global leader" in research on teens and young adults, conducted this survey of males and females ages thirteen to twenty-six; TRU fielded the survey online to a total of 1280 respondents - 653 minors (ages thirteen to nineteen) and 627 young adults (ages twenty to twenty-six) - between September 25, 2008, and October 3, 2008. Id. at 1, 5. It is wonh noting that since the survey places eighteen and nineteen-year-old respondents (legal adults) in the "minor" rather than the "young adult" category, the teen statistics may be slightly overstated and the young adult statistics may be slightly understated.
34. Among young adults who have sent or posted sexually suggestive content, 83% of women and 75% of men sent or posted this content to a boyfriend or girlfriend while 15% of women and 23% of men sent or posted this content to someone they "only knew online." Id. at 2. Additionally, 46% of young adults have received a semi-nude or nude picture or video from someone, 17% have shared a semi-nude or nude picture or video with someone other than the one for whom it was originally intended, and 32% have had a semi-nude or nude picture or video "originally meant to be private" shared with them. Id. at 11.
35. SAFE Internet Act, S. 1047, 111th Cong. § 2(a)(2) (2009) ("Eighty percent of teens 13 through 17 ⋯ use cell phones, most of which have built-in cameras.").
36. Alexandra Marks, Charges Against 'Sexting' Teenagers Highlight Legal Gaps, CHRISTIAN SCI. MONITOR, Mar. 31, 2009, 2009 WLNR 6045278.
37. SEX AND TECH STUDY, supra note 32, at 1. Among minors who have sent or posted sexually suggestive content, 71 % of teen girls and 67% of teen boys sent or posted this content to a boyfriend or girlfriend, while 15% of these minors sent or posted this content to someone they "only knew online." Id. at 2. Additionally, 31% of minors have received a semi-nude or nude picture or video from someone, 14% have shared a semi-nude or nude picture or video with someone other than the one for whom it was originally intended, and 29% have had a semi-nude or nude picture or video "originally meant to be private" shared with them. Id. at 11. A more recent study conducted by the Associated Press and MTV found that nearly one in three minors and young adults ages fourteen to twenty-four have "sent or received nude photos on their cell phones or online." Campbell, supra note 1.
38. See Karina Bland, Seduced by 'Sexting,' ARIZ. REPUBLIC, Aug. 27, 2009, 2009 WLNR 16705696 (arguing that "[y]oung people have been taking sexually provocative pictures since the Polaroid").
39. Id.
40. NCMEC Offers "Sexting" Cautions, WIRELESS & MOBILE NEWS (Sept. 22, 2009, 11:51 AM), http://www.wirelessandmobilenews.com/2009/09/ncmec- offers-sexting-cautions.html;
41. See also Mary Graw Leary, The Right and Wrong Responses to "Sexting," PUB. DISCOURSE (May 12, 2009), http://www. thepublicdiscourse.com/2009/05/227 (describing how children who willingly take semi-nude, nude, or sexually explicit photos of themselves are "likely to experience depression, anxiety, [and] low self-esteem" after learning that the images "will be circulating forever").
42. Bland, supra note 36; see also Kibret Markos, Teenage Indiscretion or Child Pornography ? A Federal Court May Soon Decide the Legality of SEXTING, REC. (Hackensack, N.J.), Feb. 3, 2010, 2010 WLNR 4681820 (stating that law-enforcement officials say that sexting images "attract child predators").
43. Richard Morgan, Revenge Pom: Jilted Lovers Are Posting Sex Tapes on the Web - and Their Exes Want Justice, DETAILS (Sept. 30, 2008), http://www.details.com/sex-relationships/porn-and-perversions/200809/ revenge-porn. According to one source, "the average revenge-porn perpetrator is a 23- to 28-year-old man." Id.
44. NCMEC Offers "Sexting" Cautions, supra note 38.
45. Lindsey Anderson, To Friend or Not To Friend? College Admissions in the Age of Facebook, USA TODAY, Sept 18, 2009, http://www.usatoday.com/news/ education/2009-09-16-facebook-admissions-N.htm.
46. To Google or Not To Google: That Is the Question for Hiring Managers, LEDDY GROUP NEWSL. (The Leddy Group), Oct. 2008, at 1, available at http://www.leddygroup.com/uploadedFiles/Knowledge-Center/Newsletters/ October08-1.pdf.
47. Press Release, CareerBuilder, Forty-five Percent of Employers Use Social Networking Sites To Research Job Candidates, CareerBuilder Survey Finds (Aug. 19, 2009), http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx? id=pr519&sd=8/19/2009&ed=12/31/2009&siteid=cbpr&sc-cmp1= cb-pr519-.
48. SEX AND TECH STUDY, supra note 32, at 4. Similarly, one teen in a more recent study conducted by the Pew Research Center stated, "[sexting] happens a lot, my friends do it all the time, it's not a big deal," and another teen in the same study stated, "[It's not a big deal because] we are not having sex, we are sexting." AMANDA LENHART, PEW INTERNET & AM. LIFE PROJECT, TEENS AND SEXTING: HOW AND WHY MINOR TEENS ARE SENDING SEXUALLY SUGGESTIVE NUDE OR NEARLY NUDE IMAGES VIA TEXT MESSAGING 7, 8 (2009), http://www.pewinternet.org/~/media//Files/Reports/2009/PIP-Teens-and-Sexting. pdf [hereinafter TEENS AND SEXTING STUDY] (alteration in original).
49. See Bland, supra note 36 (discussing how an Ohio judge ordered eight minors ages thirteen to seventeen to ask their peers whedier they knew sexting was a crime; only thirty-one of the 225 teens polled knew that they could face criminal charges for sexting).
50. See SANFORD H. KADISH, STEPHEN J. SCHULHOFER & CAROL S. STEIKER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 129 (8th ed. 2007) (discussing how the state may attempt to discourage undesired behavior by its citizens by taxing the behavior; providing for civil or criminal liability for individuals who engage in the behavior; establishing an agency to govern the behavior through "licenses, rules, and regulations"; or allowing "private social pressures" to address the behavior).
51. For example, if an individual is an alcoholic, the state generally lacks the authority to intervene to curb this behavior unless the individual's alcohol consumption violates a specific law (e.g., driving while intoxicated). Since the consumption of alcohol by an individual twenty-one years of age or older is permissible by law, the state generally leaves issues of alcohol abuse to private family and community intervention even when alcoholism may negatively affect the physical and emotional health of the alcoholic and countless other individuals. Similarly, if a bully teases a child on the playground at school, the state generally lacks the authority to intervene to curb this behavior unless the bully's taunts violate a specific law (e.g., assault). As with alcoholism, the state generally leaves issues of bullying to private school and family intervention even when bullying may negatively affect the physical and emotional health of the taunted child.
52. Parents and school faculty and administrators remain largely uneducated about sexting between minors, and even when they learn about sexting, they often lack the technological "savvy" to effectively discourage the behavior. Corbett, supra note 15, at 7; Matthiew Bandyk, Entrepreneurs Take On Sexting and Child Safety Online, U.S. NEWS & WORLD REP., Dec. 16, 2009, 2009 WLNR 25404411.
53. One prosecutor recendy observed, "I think most prosecutors ⋯ would prefer that the schools and the parents take care of [sexting]. But a lot of times, they can't, or they are the ones bringing it to our attention." Talk of the Nation: 'Sexting': Racy Teen Messaging Could Be Illegal (NPR radio broadcast Feb. 18, 2009), transcript available at http://www.npr.org/templates/ transcript/transcript.php?storyId=100826247.
54. U.S. CONST. amend. I. This Note includes only a very cursory discussion of the First Amendment implications of sexting behavior between minors and between young adults; for a more comprehensive discussion, see generally John A. Humbach, 'Sexting' and the First Amendment, 37 HASTINGS CONST. L.Q. 433 (2010).
55. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000) (citing Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)); Humbach, supra note 50, at 474.
56. Playboy, 529 U.S. at 813 (citing Sable, 492 U.S. at 126).
57. Roth v. United States, 354 U.S. 476, 483 (1957).
58. New York v. Ferber, 458 U.S. 747, 764 (1982).
59. Humbach, supra note 50, at 475.
60. Spence v. Washington, 418 U.S. 405, 411 (1974).
61. See Calvert, supra note 25, at 43 ("To the extent that the taking of a photograph by a minor with a cell phone is a speech act ⋯ laws restricting minors' ability to engage in sexting must be measured and balanced against the constitutional speech rights of minors ⋯." (footnote omitted)).
62. 413 U.S. 15 (1973).
63. Id. at 24.
64. See 50 AM. JUR. 2D Lewdness, Indecency, and Obscenity § 19 (2010) (stating that an adult may still possess an obscene image in the privacy of his or her home unless the image constitutes child pornography).
65. For purposes of this Note, the child pornography discussion is only applicable to sexting between minors because sexting between young adults would never constitute child pornography.
66. Weins & Hiestand, supra note 27, at 17.
67. See, e.g., United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009); United States v. Rivera, 546 F.3d 245, 249-50 (2d Cir. 2008); United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987); State v. Saulsbury, 498 N.W.2d 338, 344 (Neb. 1993).
68. 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).
69. Id. at 832.
70. Id.
71. United States v. Knox, 32 F.3d 733, 745-46 (3d Cir. 1994).
72. See Osborne v. Ohio, 495 U.S. 103, 109 (1990); New York v. Ferber, 458 U.S. 747, 756-57 (1982); Ginsberg v. New York, 390 U.S. 629, 640 (1968); Prince v. Massachusetts, 321 U.S. 158, 165 (1943); see also L. Steven Grasz & Patrick J. Pfaltzgraff, Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children, 71 TEMP. L. REV. 609, 626 (1998) (explaining why the protection of children is a compelling state interest and that the restrictions upheld in Ferber and Osborne should apply to child nudity). State courts have recognized similar compelling interests. For example, a Florida court held that the state has a compelling interest in regulating minors' creation of sexually explicit photos because minors lack the maturity to make rational decisions that consider the possible negative consequences of their actions, including "psychological trauma" and damage to minors' "careers or personal lives." A.H. v. Florida, 949 So. 2d 234, 238-39 (Fla. Dist. Ct. App. 2007).
73. Ferber, 458 U.S. at 757. For example, in Ferber the Court described how it used this compelling interest to uphold limits on speech: In Prince v. Massachusetts, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In Ginsberg v. New York, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently [in FCC v. Pacifica Foundation, 438 U.S. 726 (1978)], we held that the Government's interest in the "well-being of its youth" justified special treatment of indecent broadcasting received by adults as well as children. Id. (citations omitted).
74. Id. at 756-58.
75. 495 U.S. at 112 (citing Ferber, 458 U.S. at 765 n.18).
76. In re T.A.J., 73 Cal. Rptr. 2d 331, 336 (Ct. App. 1998) (quoting Stanford v. Kentucky, 492 U.S. 361, 395 (1989) (Brennan, J., dissenting)) (internal quotation marks omitted). The court illustrated this point by highlighting that "laws have established various age restrictions for voting, driving motor vehicles, purchasing alcoholic beverages, and the like." Id.
77. See Grasz & Pfaltzgraff, supra note 68, at 625 ("Nude photographs of children tend to make children more acceptable as objects of abuse, neglect, and mistreatment, especially sexual abuse and exploitation."); see also discussion supra Part II.A (discussing the unintended short-term and long-term psychological and reputational consequences of sexting). A teen participant in a recent Pew Research Center study described how she felt psychologically coerced into sexting, stating that "I felt like if I didn't [engage in sexting] [my boyfriend or someone I really liked] wouldn't continue to talk to me." TEENS AND SEXTING STUDY, supra note 45, at 8. Additionally, MTV recently launched its "A Thin Line Campaign" which highlights the "connection between sexting and higher rates of sexual activity and suicidal feelings among teens." Campbell, supra note 1.
78. See Nunez v. City of San Diego, 114 F.3d 935, 946 (9th Cir. 1997) (stating that "the government may have a compelling interest in protecting minors from certain things that it does not for adults").
79. According to the Restatement (Second) of Torts, "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." RESTATEMENT (SECOND) OF TORTS § 46 (1965). Emotional distress includes "unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea." Id. § 46 cmt. j.
80. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 817 (16th ed. 2007). See generally Hutchinson v. Proxmire, 443 U.S. 111 (1979) (supporting a cause of action for intentional infliction of emotional distress initiated by a private citizen who worked as a behavioral scientist after a U.S. Senator and his legislative assistant publicly criticized the man's research).
81. SULLIVAN & GUNTHER, supra note 76, at 820-21. See generally Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984) (recognizing a woman's cause of action for invasion of privacy after a neighbor broke into her home, stole several nude photos that the woman took for her husband, and submitted the photos to Hustler Magazine without the woman's consent); Pohle v. Cheatham, 724 N.E.2d 655 (Ind. Ct. App. 2000) (recognizing a woman's cause of action for "intentional invasion of privacy" after her ex-husband publicly distributed nude photos that the woman took during the course of their marriage).
82. Ohio state and federal courts have an opportunity to demonstrate how the state can intervene to curb secondary sexting between young adults by recognizing and supporting the emotional-distress and invasion-of-privacy claims initiated by Jessica Logan's family following her untimely death. Her parents initiated two separate lawsuits. The Logans filed the first lawsuit in state court to hold Ryan Salyers; seven other minors; the City of Montgomery, Ohio; Sycamore High School; two Sycamore High School employees; and two unnamed defendants responsible for the untimely death of their daughter. Logan State Complaint, supra note 5. In their Complaint, the Logans stated seven causes of action including: (1) menacing by stalking, (2) district policy prohibiting harassment, (3) dissemination of private material, (4) intentional infliction of emotional distress, (5) negligence, (6) breach of expectations of privacy and violations of civil rights, and (7) wrongful death. Id. at 4-10. The Logans filed the second lawsuit in federal court to hold the Sycamore Community School Board of Education; a Sycamore High School employee; the City of Montgomery, Ohio; Ryan Salyers; and four other minors responsible for the untimely death of their daughter. Logan Federal Complaint, supra note 6. In their Complaint, the Logans stated four causes of action including: (1) right to be free from discrimination on the basis of sex in federally funded education programs and activities, (2) Fourteenth Amendment violations, (3) infliction of emotional distress, and (4) invasion of privacy. Id. at 9-10.
83. See generally A.H. v. Florida, 949 So. 2d 234 (Fla. Dist. Ct. App. 2007) (convicting a Florida teen of producing, directing, or promoting a photograph or representation she knew to include the sexual conduct of a child after she and her teen boyfriend took photos of themselves engaged in a sex act).
84. See generally Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009) (granting a temporary restraining order to prevent a Pennsylvania district attorney from filing felony child-pornography charges against three Pennsylvania minors after their classmates disseminated photos of the girls without the girls' consent).
85. A.H., 949 So. 2d at 241 (Padovano, J., dissenting); Richards & Calvert, supra note 11, at 12; Weins & Hiestand, supra note 27, at 3.
86. Corbett, supra note 15, at 6.
87. Id.
88. Weins & Hiestand, supra note 27, at 26.
89. See Stephen F. Smith, Jail for Juvenile Child Pornographers?: A Reply to Professor Leary, 15 VA. J. SOC. POL'Y & L. 505, 529 (2007) (arguing that minors who voluntarily produce self-exploitive pornography should not be considered "victims"); see also Brief of Juvenile Law Center as Amici [sic] Curiae in Support of Appellees at 14, Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010) (No. 09-2144), aff'g Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009), available at http://www.jlc.org/files/briefs/JLC-Amicus-Miller-v- Skumanick.pdf (arguing that sexting "generally involves only normal adolescent self expression without the exploitive circumstances that are implicit in the production of conventional child pornography").
90. Richards & Calvert, supra note 11, at 13-14. See generally supra notes 22-24 and accompanying text (discussing the four roles in every sext).
91. Skumanick, 605 F. Supp. 2d at 637 (citing Skumanick Complaint, supra note 17, at 6).
92. Id.
93. The language of the form letter is reprinted in the opinion written by the U.S. Third Circuit Court of Appeals. Miller, 598 F.3d at 143-44. Note that the case name changed on appeal after Jeff Mitchell defeated George Skumanick in the election of November 2009 to become District Attorney of Wyoming County, Pennsylvania. Id. at 145.
94. Skumanick, 605 F. Supp. 2d at 638 (citing Skumanick Complaint, supra note 17, at 8).
95. Id.
96. Id. at 640 (citing Skumanick Complaint, supra note 17, at 14). In their initial complaint, the plaintiffs brought three causes of action including (1) "retaliation in violation of the minors' First Amendment right to free expression" (the expression being the content of the sexting images), (2) "retaliation in violation of the minors' First Amendment right to be free from compelled speech" (the compelled speech being the education program's essay requirements), and (3) "retaliation in violation of the parents' Fourteenth Amendment substantive due process right to direct their children's upbringing" (the interference being the education program's curriculum). Mitchell, 598 F.3d at 147-48. The district court based its decision only on the second and third claims, and the court of appeals only considered the second and third claims in its review of the district court's decision. Id. at 148.
97. Skumanick, 605 F. Supp. 2d at 647.
98. Id. at 645-46. The court also found that the plaintiffs demonstrated a reasonable probability of success on the merits of their claims, that the denial of the temporary restraining order would likely cause irreparable injury to the plaintiff teenage girls, that the order would not result in greater harm to the prosecutor, and that granting the motion would be in the public interest. Id. at 643-47.
99. Mitchell, 598 F.3d 139.
100. Erin L. Nissley, Charges Will Not Be Filed Against Wyoming County Girls in Sexting Case, TlMES-TRIB. (Scranton, Pa.), May 1, 2010, http://thetimes- tribune.com/news/charges-will-not-be-filed-against-wyoming-county-girls-in- sexting-case-1.753585.
101. 18 PA. CONS. STAT. § 6312 (2009).
102. Skumanick, 605 F. Supp. 2d at 639 (citing Skumanick Complaint, supra note 17, at 2).
103. Id. (citing Skumanick Complaint, supra note 17, at 2).
104. Skumanick Complaint, supra note 17, at 14 (citing § 6312).
105. Skumanick, 605 F. Supp. 2d at 638 (citing Skumanick Complaint, supra note 17, at 8).
106. See discussion supra Part II.B (discussing the First Amendment implications of sexting images).
107. JEREMY BENTHAM, PRINCIPLES OF PENAL LAW (1788), reprinted in 1 THE WORKS OF JEREMY BENTHAM 365, 399 (Russel & Russel Inc. 1962) (1838).
108. A.C. Ewing, Punishment as Viewed by the Philosopher, 21 CANADIAN B. REV. 102, 115-16 (1943). According to A.C. Ewing, when this happens, society frequendy views the offender as "a victim of cruel laws, and the whole process, instead of reaffirming the law and intensifying men's consciousness that the kind of act punished is wrong, will have the opposite effect of casting discredit on the law and making the action of the lawbreaker appear excusable." Id. at 115.
109. Richards & Calvert, supra note 11, at 12.
110. Depending on the crime, a prosecutor may charge a sex offender with a "misdemeanor or a felony; a convicted sex offender may serve jail or prison time, pay punitive and compensatory fines, and incur a number of other penalties." Sex Offender, CRIM. L. LAW. SOURCE, http://www.criminal-law- lawyer-source.com/terms/sex-offender.html (last visited Oct. 6, 2010).
111. Geyer, supra note 29. In many states, community-notification requirements restrict where sex offenders can live or require all sex offenders to wear electronic monitors. Dan Gunderson, When Getting Tough Backfires: Sex Offender Laws Have Unintended Consequences, MINN. PUB. RADIO (June 18, 2007), http://minnesota.publicradio.org/display/web/2007/06/11/sex offenden/; Sex Offender, supra note 106 ("Most state sex offender laws require a sex offender to register in their place of residence within the first week or two of relocation or release, every time they move to another home, county, or state, for the rest of their lives. Many sex offender laws also require a sex offender to notify their employer of their sex offender status."). Additionally, state laws may prohibit sex offenders from having contact with minors generally and the offender's victim or victim's family specifically, entering "places where minors congregate," viewing and possessing materials that are sexual in nature, frequenting establishments where "alcohol is a major revenue source," or engaging in "romantic relationships with someone who has kids." Id. For example, in a recent interview, Phillip Alpert, a young adult who engaged in sexting (mentioned at the beginning of this Note), discussed how one of his teachers informed his classmates of his sex-offender status and how he endured ridicule and isolation that caused him to skip school and miss his high-school graduation; he also described how his sex-offender status restricts where he can live and work. Richards & Calvert, supra note 11, at 20-21.
112. Sex Offender, supra note 106.
113. See Richards & Calvert, supra note 11, at 23, 36. Maureen Kanka - mother of Megan Kanka, the seven-year-old girl who a convicted sex offender raped and murdered and the namesake of Megan's Law - has publically criticized sex-offender registration for sexting minors. Id. at 36.
114. See supra notes 5-9 and accompanying text (discussing Jessica Logan, a young adult from Ohio who sent a sexting image to another young adult).
115. Logan Federal Complaint, supra note 6, at 4; Logan State Complaint, supra note 5, at 2.
116. Logan Federal Complaint, supra note 6, at 4-5; Logan State Complaint, supra note 5, at 2.
117. Logan Federal Complaint, supra note 6, at 5; Logan State Complaint, supra note 5, at 2.
118. Logan Federal Complaint, supra note 6, at 6; Logan State Complaint, supra note 5, at 2.
119. Logan Federal Complaint, supra note 6, at 6 (citation omitted).
120. Id.; Logan State Complaint, supra note 5, at 3.
121. Logan Federal Complaint, supra note 6, at 7.
122. Id. at 8.
123. See supra notes 45-46 and accompanying text (presenting evidence that minors and young adults may not truly understand the consequences of sexting).
124. Mary Graw Leary, Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation, 15 VA. J. SOC. POL'Y & L. 1, 42-43 (2007).
125. Colleges and universities should implement preventative programs because of the high percentage of college-age minors and young adults who engage in sexting. See discussion supra Part II.A (discussing the prevalence of sexting between minors and between young adults).
126. Corbett, supra note 15, at 7.
127. Id. A recent study conducted by the Pew Research Center found that "[t]eens with unlimited text messaging plans" are more likely to report sexting than minors with "limited plans" or minors who "pay per message." TEENS AND SEXTING STUDY, supra note 45, at 6.
128. Bandyk, supra note 49.
129. Andy Gammill, IPS Wants To Put End to Students' Sexting, INDIANAPOLIS STAR, Aug. 19, 2009, 2009 WLNR 16150058.
130. Press Release, Office of Pa. Att'y Gen. Tom Corbett, Attorney General Corbett Announces Launch of New Educational Program Aimed at Preventing Cyberbullying (Oct. 14, 2009), http://www.attorneygeneral.gov/press.aspx?id= 4755. The District Attorney of Berkshire County in Massachusetts recently launched a similar initiative. See Press Release, Office of Berkshire Cnty. Dist Att'y David F. Capeless, District Attorney Holds Press Conference on Problem of "Sexting" in Berkshire County (Mar. 3, 2009), http://www.mass.gov/? pageID=bermodulechunk&L=1&Lo=Home&sid=Dber&b= terminalcontent&f=nu-2009-0303-sexting-press-conference&csid=Dber (describing the district attorney's plan to provide presentations to schools and communities on topics such as bullying, cyberbullying, internet safety, and sexting).
131. Press Release, Office of Pa. Att'y Gen. Tom Corbett, supra note 126.
132. Press Release, FTC, Cybersafety Booklet for Parents and Kids Now Available (Dec. 16, 2009), http://www.ftc.gov/opa/2009/12/netcetera.shtm.
133. ONGUARD ONLINE, NET CETERA: CHATTING WITH KIDS ABOUT BEING ONLINE 19 (2009), http://www.onguardonline.gov/pdf/tec04.pdf. On the specific issue of sexting, the booklet recommends to parents, "Tell your kids not to do it. In addition to risking their reputation and their friendships, they could be breaking the law if they create, forward, or even save this kind of message." Id.
134. SAFE Internet Act, S. 1047, 111th Cong. § 3(5) (2009). Under this bill, eligible entities may receive a two-year grant from the Director of the Bureau of Justice Assistance to do such things as "identify, develop, and implement Internet safety education programs"; "provide professional training to elementary and secondary teachers, administrators, and other staff on Internet safety and new media literacy"; "educate parents about teaching their children how to use the Internet and new media safely"; and "help parents identify and protect their children from risks relating to use of the Internet and new media." Id. § 4(d).
135. The federal government may also consider revising existing statutes or implementing new statutes that address primary and secondary sexting between minors because minors who send sexting images across state lines may face charges in federal court.
136. See supra notes 22-24 and accompanying text (discussing the four roles in every sext). For an example of such language, see H.B. 2189, 2009-2010 Gen. Assemb., Reg. Sess. (Pa. 2010) (Printer's No. 4008), which revises an existing child-pornography statute and provides that a minor who distributes or possesses a depiction of him- or herself or another minor "engaging in sexually explicit conduct" may face second-degree misdemeanor charges rather than felony charges. Id. The bill defines "sexually explicit conduct" as a "lewd or lascivious exhibition of the [minor's] genitals, public area, breasts or buttocks" or "nudity if the nudity is depicted for the the purpose of sexual stimulation [of the viewer]." Id. The bill does not apply to images that depict "sexual intercourse," "deviate sexual intercourse," "masturbation," or "sadism or masochism" involving a minor; minors who distribute or possess such images may face felony child-pornography charges. Id.
137. For an example of such language, see a recent New Jersey bill, introduced before both the General Assembly and the Senate, which states that an "eligible offense" includes "the creation, exhibition or distribution ⋯ of a photograph depicting nudity as defined [by state law] through the use of an interactive wireless communications device or a computer." Gen. Assemb. 4069, 213th Leg., Reg. Sess. (N.J. 2009); S.B. 2926, 213th Leg., Reg. Sess. (N.J. 2009).
138. See SEX AND TECH STUDY, supra note 32, at 2 (discussing how the vast majority of minors and young adults who engage in sexting send such content to their boyfriend or girlfriend).
139. Miller v. Mitchell, 598 F.3d 139, 146 (3d Cir. 2010) (quoting Commonwealth v. J.H.B., 760 A.2d 27, 32 (Pa. Super. Ct. 2000)) (internal quotation marks omitted).
140. Under certain circumstances, it may be appropriate for the state to impose harsher penalties on minors who engage in primary sexting. These situations may include instances where the teen already completed or failed to complete a juvenile diversion program designed to discourage the teen from engaging in primary sexting or instances where the teen coerced the subject of the photo to take or disseminate the photo.
141. Mathias H. Heck, Sexting and Charging Juveniles - Balancing the Law and Bad Choices, PROSECUTOR, Jan.-Mar. 2009, at 28, 29.
142. Id.
143. Gen. Assemb. 4069, 213th Leg., Reg. Sess. (N.J. 2009); S.B. 2926, 213th Leg., Reg. Sess. (N.J. 2009).
144. See supra note 136 (discussing such limited circumstances).
145. S.B. 2560, 2010 Leg., Reg. Sess. (Fla. 2010).
146. Note that there is no punishment for a minor who receives and merely possesses the image. Id.
147. Id.
148. Interestingly, one of the illustrations of a cause of action for intentional infliction of emotional distress that the Restatement (Second) of Torts provides is a situation in which a man invites a woman to a swimming party and gives the woman a bathing suit that the man knows will dissolve in water, the bathing suit dissolves once the woman enters the water, "leaving her naked" in the presence of the other guests; and she suffers "extreme embarrassment, shame, and humiliation." RESTATEMENT (SECOND) OF TORTS § 46 cmt. d, illus. 3(1965). This scenario is analogous to secondary sexting in which a recipient of a semi-nude or nude sexting image shares the photo with unintended recipients without the consent of the subject of the photo.
149. Current privacy doctrine protects "anything occurring in a space designated as 'private,'" including "sexual details and intimate communications." Patricia Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 17 (2007).
150. Pohle v. Cheatham, 724 N.E.2d 655, 657-58 (Ind. Ct. App. 2000). The court also dismissed the woman's ex-husband's affirmative defense of waiver, stating that: We cannot agree ⋯ that Cheatham consented to the publication of the photographs. Rather, it is clear that ⋯ she simply consented to being privately photographed by her husband. From such limited consent, it certainly
151. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1085-86 (5th Cir. 1984).
152. See Calvert, supra note 25, at 63 (discussing how victims of secondary sexting may have a civil law remedy against the person who forwarded his or her image without permission).