<b><i>BREAKING NEWS:</i></b> Third Circuit Bars Prosecution Threat for Teen 'Sexting'

In the first case ever to challenge the constitutionality of prosecuting teens for 'sexting' (see, 'Third Circuit Tackles Teen 'Sexting' As Child Pornography' in the February issue of Internet Law & Strategy), a federal appeals court has upheld an injunction that barred a Pennsylvania prosecutor from bringing child pornography charges against girls who refused to attend a class he had designed to educate youths about the dangers of sexting.

In Miller v. Mitchell, a unanimous three-judge panel concluded there was no probable cause to bring any charges against the girls who had appeared in various states of undress in photos shared among a group of teens. Missing from the prosecutor's case, the court said, was critical evidence about who exactly had transmitted the images.

As a result, the court said, any decision to prosecute the teens after they refused to take the class would therefore be retaliation against them for asserting their First Amendment rights.

Significantly, the panel also found that former Wyoming County District Attorney George Skumanick Jr. had violated the rights of parents by usurping their roles. (While the case was on appeal, Skumanick lost his bid for re-election and the caption of the case was changed to name Jeff Mitchell, the new district attorney, as defendant.)

'An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles,' Third Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Walter K. Stapleton.

Ambro found that an 'essential component' of a parent's right to raise a child is the 'responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship,' and that Skumanick interfered with that right by threatening criminal charges to coerce kids to attend a class on sexuality and gender role issues.

'While it may have been constitutionally permissible for the district attorney to offer this education voluntarily (that is, free of consequences for not attending), he was not free to coerce attendance by threatening prosecution,' Ambro wrote.

Ambro found that the threats by Skumanick had forced the plaintiffs to 'choose either to assert their constitutional rights and face a prosecution … based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution.'

Such a 'Hobson's choice' is unconstitutional, Ambro found, because prosecutors have broad discretion in deciding when to bring charges, but their decisions cannot be based on 'arbitrary classification, including the exercise of protected statutory and constitutional rights.'

The plaintiffs, Ambro said, mustered sufficient evidence to show they were likely to prevail on their claim that Skumanick's 'motive in bringing a prosecution is likely retaliatory, rather than a good faith effort to enforce the law.'

The ruling is a victory for attorney Witold Walczak of the American Civil Liberties Union of Pennsylvania, who hailed the decision as one that provides important lessons for prosecutors 'about the constitutional limits on their ability to charge kids involved in sexting.'

Attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., who defended Skumanick's actions in the appeal, said he has not yet discussed the ruling with Mitchell, the new district attorney.

But Donohue said he took 'some solace' in the court's decision not to declare that teenagers have a constitutional right to send sexually explicit images to other teens.

In court papers, the term 'sexting' was defined as 'the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet.'

After a wave of sexting was discovered among students at Tunkhannock junior and senior high schools, 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 ACLU 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 the Third Circuit has upheld Munley's injunction, but emphasized that its ruling was a narrow one that was premised on the prosecutor's clear intent to use his power to charge as a way to retaliate.

'This decision does not open the door to federal courts serving as a screening mechanism for state prosecutions,' Ambro wrote. 'Before us is the unique circumstance of a prosecutor revealing unequivocally that a prosecution would be brought solely in response to a potential defendant's exercise of a constitutional right.'