Teamsters Local 177
Teamsters Local 177
 

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Information on Sexting & Free Speech
Dec 04, 2020

  In Miller v. Mitchell, 598 F. 3d 139 (3d Cir. 2010), the Third Circuit (the Federal Appeals Court of New Jersey) upheld a temporary injunction preventing a District Attorney from bringing criminal charges against students for "sexting", which is defined as "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the internet." More specifically, the District Attorney offered students who engaged in sexting a choice; They could attend a six to nine month education program, or criminal charges would be filed against them for disseminating child pornography. Parents of the students who refused to engage in the program brought a lawsuit against the District Attorney and sought to enjoin the criminal charges.

   The Third Circuit upheld the trial court's injunction. More specifically, the Court held that the Plaintiffs demonstrated a reasonable likelihood of success of proving that the District Attorney violated the parents' constitutional right to teach their children morality without State intrusion, as well as their children's First Amendment right to be free from State compelled speech, i.e., freedom from being forced to write essays on why their conduct was morally wrong.

   The Court also held that the Plaintiffs demonstrated a reasonable likelihood of success of proving that the District Attorney sought to bring charges not based upon probable cause that the children commited a crime, but rather, in retaliation for the parents' and children's exercise of their Constitutional rights. While the case was not decided on the merits, the injunction was upheld and the case was remanded for further proceedings.


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