ACLU of PA Calls "Sexting" Bill Passed by PA House Unconstitutional

June 29, 2010 12:00 am

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Civil Liberties Group Also Notes “Over-Criminalization of Kids” In the Shadow of the Luzerne County Scandal


HARRISBURG – Legislation on “sexting” passed by the Pennsylvania House of Representatives today drew criticism from the American Civil Liberties Union of Pennsylvania, which raised concerns that the bill is unconstitutional and will sweep more children into the criminal justice system.

“On the heels of the Luzerne County juvenile court scandal, it’s unfortunate that the House would pass a bill that could bring more kids into contact with the criminal justice system,” said Andy Hoover, legislative director of the ACLU of Pennsylvania. “Now is the time to approach juvenile justice with a scalpel, not a sledgehammer.”

House Bill 2189 attempts to deal with “sexting,” when kids- usually teenagers- send semi-nude, nude, or sexually provocative photos of themselves and others via electronic communication. A 2010 poll by the Associated Press and MTV indicated that nearly 25 percent of teens have engaged in sexting.

Hoover also raised concerns that the language of the bill is unconstitutional and criminalizes expression protected by the First Amendment.

“If the photos only involve nudity and no one is being abused, it’s protected speech,” Hoover said. “We don’t want to see the commonwealth walk into a federal lawsuit nor do we want to see the lives of some kids damaged by a law that might be unconstitutional.”

The ACLU of Pennsylvania recently won litigation in Wyoming County, where the then-district attorney threatened to charge 20 kids with felony child pornography crimes for sexting unless the kids participated in the DA’s re-education program on morality and “what it means to be a girl in today’s society.” Three kids and their parents refused and successfully sued the district attorney.

Hoover noted the connection between the Wyoming County lawsuit, cases in other counties, and HB 2189.

“The state legislature is going through this exercise because there are outlier DAs who are over-charging kids,” Hoover said. “Like the Luzerne County judges, these DAs are using the heavy hammer of the law to over-criminalize our children, and they’re using statutes that were never intended for this purpose.”

HB 2189 now heads to the Senate for consideration.

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