LEGAL GUIDE
Written by attorney Charles E. Colman | Jun 9, 2011

A non-systematic look at "sexting" case law

In honor of Representative Anthony Weiner, this guide will draw your attention to a few of the more interesting judicial opinions to pop up in the swelling body of case law on sexting:

  • Miller v. Mitchell (3d Cir. 2010) (http://scholar.google.com/scholar_case?q=miller+v.+mitchell&hl=en&as_sdt=2,33&case=7857709161035562802&scilh=0): A teen is caught sexting in school. The District Attorney threatens to prosecute her on felony child pornography charges if she does not attend an educational program in which participants are required to write a report explaining "why sexting is wrong." The Court of Appeals for the Third Circuit rules that this coercion likely violates both the minor's First Amendment right not to speak and her mother's Fourteenth Amendment right to parental autonomy.

  • State v. Canal (Iowa 2009) (http://scholar.google.com/scholar_case?q=773+N.W.2d+528&hl=en&as_sdt=2,33&case=1541290720349707675&scilh=0): A fourteen-year-old female student receives, but forgets to delete, her eighteen-year-old boyfriend's sext of his erect penis. The girl's mother finds it, and the sext is turned over to the police. The State charges the boyfriend, Jorge Canal, with the crime of "knowingly disseminating obscene material to a minor." He is convicted and ordered to register as a sex offender. (During his trial, the girlfriend testifies that "she asked for a photograph of Canal's penis, but not his erect penis.") Canal appeals on the ground that a sext of an erect penis is not "obscene," appealing only to "a natural interest in sex" and not to "a prurient interest in sex" (one component of the constitutional definition of obscenity (http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution#Obscenity).) The Supreme Court of Iowa upholds his conviction, as the trial judge made it clear to the jury "that a depiction of a person's genitals [is] not in and of itself obscene."

  • Attorney Grievance Comm'n of Maryland v. Marcalus (Md. 2010) (http://scholar.google.com/scholar_case?q=attorney+grievance+committee+marcalus&hl=en&as_sdt=4,21&case=14746916783747631764&scilh=0): A Maryland attorney is disciplined for dispensing Vicodin in exchange for oral sex. The court glosses over the whole prostitution bit, finding that illegal distribution of Vicodin is sufficient to warrant sanctions. However, in part because "[o]n a spectrum of controlled dangerous substance distribution offenses, Marcalus's crime is relatively minor," a bare majority of the court decides to eschew disbarment and merely suspend the attorney from practice for sixty days. The three dissenting judges would throw Marcalus out of the Maryland bar, partly because he has already been suspended once for "conduct prejudicial to the administration of justice" -- i.e. "sen[ding] his client inappropriate and sexually suggesting suggestive electronic text message (sexting) . . . all while in a courthouse awaiting a trial to commence." Now that's class.

  • City of Ontario, California v. Quon (U.S. 2010) (http://www.law.cornell.edu/supct/html/08-1332.ZS.html): This U.S. Supreme Court case is really about Fourth Amendment searches and seizures, and doesn't shed much light on sexting, per se. It does, however, shed light on Chief Justice John Roberts' lack of understanding about the difference "between email and a pager," Justice Kennedy's confusion about whether texts can be received simultaneously, and Justice Scalia's burning desire to know whether texts can be printed out, you know, on paper (http://www.huffingtonpost.com/2010/04/21/ontario-quon-sexting-case_n_545764.html).

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