NASHUA, N.H. (AP) — A lawyer for a former high school English teacher in New Hampshire accused of sending sexually explicit emails and videos to a 16-year-old female student says the material isn’t obscene and is protected speech under the state and U.S. constitutions.
Robert Todd Wiley was arrested last year. Police accused him of solicitation to distribute child sex images, obscenity and other charges.
Among other things, Wiley is accused of enticing the student to send him sexually explicit photos and sending the student photos and video of male genitals.
The emails also contain “flirting, discussions of sex and various body parts,” and a “series of short story-like sexual fantasies” involving Wiley and the girl.
Wiley’s lawyer Anthony Sculimbrene isn’t denying his client sent the emails. But in arguing the case should be dismissed, he says the emails are not obscene and are protected speech.
He also notes there was no coercion or threats involved and that acts described in the emails, had they actually occurred, would’ve been legal. New Hampshire’s age of consent is 16.
“The emails with sexual content — description of bodies and body parts, puns, in jokes, and innuendos, the sexual fantasies — are exactly the sort of content protected by the First Amendment and thus are not obscene,” Sculimbrene wrote. “Additionally, if the actual sex itself would have been legal, then the language describing that sex cannot be obscene.”
The issue of sexting and the First Amendment has increasingly found its way into the courts, mostly involving students. But in a 2014 Texas case, prosecutors dropped charges against a Texas teacher accused of sending sexually explicit text messages to a 13-year-old after an appeals court ruled a state law against sexually explicit online communication between adult and minor violated First Amendment free speech rights.
John A. Humbach, a professor of Law at Pace University who has written on First Amendment law and constitutional rights of minors, said he has his doubts whether Sculimbrene’s strategy in the New Hampshire case will be successful.
“The teacher is going to have a heck of an uphill fight to persuade a court that the First Amendment ought to apply to this situation,” he said. “There are legal arguments the teacher might make but he would be doing so at the risk of rejecting the better outcome that he might get from plea bargaining.”
At the time of his arrest, Merrimack Superintendent Marge Chiafery said Wiley submitted a letter of retirement, effective immediately. She said she was “shocked and saddened” by the case.
A judge scheduled a hearing May 8.
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