PA: Federal judge enjoins Wyoming County D.A. from disciplining or prosecuting “sexting” teenagers for child pornography
Miller et. al. v. Skumanick, No. 3:09cv540, (M.D. Pa. March 30, 2009)
Federal judge enjoins Wyoming County district attorney from disciplining or prosecuting “sexting” teenagers for child pornography.
Following an investigation into several “sexting” incidents within the Pennsylvania School District, Wyoming County District Attorney George Skumanick threatened to charge three female students (all minors) with either the possession or distribution of child pornography (see 18 Pa.C.S. 6312) unless they completed a lengthy probationary program of education and counseling in which they would be required to describe the “wrongness” of their behavior. The court gives this description of the photos:
The photograph in question was approximately two years old, and showed Plaintiffs Marissa Miller and Grace Kelly from the waist up, each wearing a white, opaque bra. Marissa was speaking on the phone and Grace using her hand to make the peace sign. The girls were thirteen years old at the time the picture was taken . . .
The photograph, more than a year old, showed Nancy Doe wrapped in a white, opaque towel. The towel was wrapped around her body, just below her breasts. It looked as if she had just emerged from the shower.
The minors testified that they were not responsible for the dissemination of the images–that, in effect, they were the victims of a crime rather than the perpetrators of one. Parents (Miller, et. al.) of the accused minors, arguing that the images at issue are not illegal under Pennsylvania law, brought three causes of action against Skuminick: (1) retaliation in violation of the First Amendment right to free expression (arguing that the photographs in question are not obscene); (2) retaliation in violation of the First Amendment right to be free from “compelled speech”; and (3) retaliation against parents for “exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing.”
Miller argued that (1) the minors were not engaging in the creation or distribution of child pornography and that therefore (2) to be compelled to “describe their [lawful] behavior as wrong” amounts to a violation of their right to be free from compelled speech; furthermore, Skumanick’s threat to prosecute the minors for constitutionally protected behavior if they did not attend the “re-education” program amounts to retaliatory prosecution. According to Judge Munley, Miller’s case would likely to succeed on its merits:
The court here offers no final conclusion on the merits of plaintiffs’ position. Testimony and evidence at the TRO hearing, as well as allegations in the verified complaint, however, indicate a reasonable likelihood that the plaintiffs could prevail on this aspect. While the court emphasizes that its view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one. Thus, a reasonable likelihood exists that plaintiffs will succeed on the merits, and this factor weighs in favor of granting a TRO.