The sext seen 'round the world (and some with smaller audiences)

Posted by Charles Colman

This post has far more to do with nudity than clothing, but LAW OF FASHION feels compelled to stand and salute former soon-to-be former former Representative Anthony Weiner, he of the sext seen 'round the world.  In honor of Rep. Weiner, LOF wishes to direct 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):  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):  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.)  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):  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.

[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities.  Any views expressed herein are those of the writer on the particular date of this post, and should not necessarily be attributed to his law firm or its clients.]