'Sexting' Case to Take Center Stage at 3rd Circuit

1-14-2010 Pennsylvania:

A federal appeals court on Friday takes up the growing practice of "sexting" -- in which teenagers transmit nude and semi-nude photos of themselves and others by phone -- as the judges tackle the vexing question of whether such images can be deemed child pornography.

The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County, Penn., girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.

After a wave of sexting was discovered among students in Pennsylvania's Tunkhannock Area School District, Skumanick targeted 13 girls and three boys. Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the American Civil Liberties Union to challenge the threatened prosecutions.

In March 2009, U.S. District Judge James M. Munley sided with the ACLU and issued an injunction that blocked Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected under the First Amendment.

Now Witold J. Walczak, the legal director of the ACLU of Pennsylvania, will be urging the 3rd U.S. Circuit Court of Appeals to uphold the injunction, while attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., urges the court to overturn it.

In an amicus brief, attorneys Marsha L. Levick and Riya S. Shah of the Juvenile Law Center side with the ACLU and its plaintiffs, arguing that "sexting prosecutions are an abuse of prosecutorial discretion and are inconsistent with the juvenile act's purpose of providing rehabilitation and treatment."

Levick and Shah argue that sexting "represents the convergence of technology with adolescents' developmental need to experiment with their sexual identity and explore their sexual relationships."

Child pornography laws, Levick and Shah argue, "are intended to protect victims and prosecuting sexting as child pornography is inconsistent with the stated purpose and legislative intent of these laws."

The 3rd Circuit panel is composed of Judges Thomas L. Ambro, Walter K. Stapleton and Michael A. Chagares.

In the brief for Skumanick, Donohue argues that the injunction "represented an unwarranted and illegal intrusion into the juvenile justice system of Wyoming County."

Donohue argues that Skumanick was faced with a situation where "provocative photographs of nude and semi-nude adolescent girls" were being sent to students.

"In his prosecutorial discretion, he was attempting to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous," Donohue wrote.

Donohue argues that the federal courts "should be extremely hesitant and deferential in intervening in prosecutorial discretion in the criminal courts of the states."

But Walczak, who was joined on the brief by ACLU attorneys Sara J. Rose, Valerie A. Burch and Mary Catherine Roper and University of Pennsylvania law professor Seth F. Kreimer, argues that Munley's injunction was legally sound because Skumanick never had probable cause to charge any of the plaintiffs under child pornography laws.

The ACLU's brief says the three plaintiffs appeared in "innocuous digital photos topless or clad in underwear."

Under Pennsylvania law, Walczak argues, "the photos could not be considered child pornography in terms of their content or context."

Pennsylvania law also "regards minors portrayed in pictures as victims rather than perpetrators," Walczak argues, and an image created by the minor herself carries none of the same concerns about victimization.

As a result, Walczak argues that the images "could not be criminalized without running afoul of the First Amendment," and that Skumanick's threat to file charges "was baseless and was made only to coerce the girls to participate in a re-education program of his design."

Walczak argues that the girls had "a constitutional right to refuse to participate" in such a program.

"The girls have a First Amendment right not to be forced to mouth the views that Skumanick believes appropriate for 'girls in today's society' and their parents have a 14th Amendment right to direct their daughters' education, which includes the right not to subject them to a program that reflects Skumanick's views of what it means to be female in today's society," Walczak wrote.

As a result, Walczak argues, Munley "correctly concluded that under the circumstances Skumanick's threat to file baseless criminal charges against the girls, unless they and their parents acceded to his demands, represented unconstitutional retaliation." ..Source.. Shannon P. Duffy, The Legal Intelligencer