They decided not to decide

In the first federal appeals court opinion on the subject of sexting,  Miller v. Mitchell (United States Court of Appeals, Third Circuit No. 09-2144), a three judge panel of the Third Circuit has ruled that the children cannot be prosecuted for child pornography for photographs found on classmates cellphones.  However, the court declined to address the elephant in the room, the First Amendment Right to Free Speech.  Thus the question about whether obscene photos sent by juveniles are protected by the First Amendment has not been decided.

Their decision carefully avoids suggesting that distributing photographs of children is something that is protected by the First Amendment, while also carefully avoiding the suggestion that children under the age of 18 do not have the right to transmit these types of photographs or messages.

This case may put the issue of sexting among teenagers to rest for a while. However, it is only a matter of time before the issue of sexting arises again, and sooner or later the courts will have to consider whether or not this type of communication falls under the protection of the First Amendment.