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March 31, 2009

Federal district judge enjoins controversial state sexting prosecution

As detailed in this Reuters article, a federal district judge "on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones."  Thanks to How Appealing, you can read the judge's full opinion at this link, and here are more details from the Reuters article:

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.  The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.  "The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said....

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision. "This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.

But Skumanick said it could encourage potential defendants to use the federal court system to evade state charges.  "My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system." Skumanick said.  When asked if he would appeal, he said was studying the opinion.

Based on the pretty remarkable factual allegations in this "sexting" case, I am neither surprised nor too troubled that the local DA was given a federal court smack-down in this case.  That said, I suspect that lots of state prosecutors ought to share the local DA's concern that this ruling in Miller v. Skumanick could (and should?) embolden any and all potential state criminal defendants to run to federal court to seek to preclude any and all constitutionally questionable state prosecutions. 

Indeed, I would suspect that anti-death-penalty litigators might want to take a page from the playbook of the ACLU of Pennsylvania.  Based on the theories sustained in Miller v. Skumanick, a state murder defendant being threatened by a local prosecutor with a capital indictment as part of plea negotiations might now consider running to federal court to assert various constitutional claims in order to try to preclude the local prosecutor from pursuing a state capital prosecution. 

Similarly, perhaps Second Amendment advocates can and should be able to use the ruling in Miller v. Skumanick to try to thwart any efforts by aggressive state prosecutors to pursue any kind of constitutionally questionable gun prosecution.  In fact, with Plaxico Burress having a hard time getting a favorable plea deal (basics here), his lawyers perhaps out to seriously consider heading over to the federal courts in Foley Square to assert Second Amendment claims in an effort to force New York state prosecutors to back off.

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March 31, 2009 at 11:38 AM | Permalink

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Comments

An arguable distinction between this case and your run of the mill habeas case, is that this one concerns the constitutionality of what is substantively prohibited by state law, as opposed to the constitutionality of the criminal justice process.

"It isn't constitutional to criminalize murder," is neither a common nor an effective habeas corpus argument.

There are several precedents for the enforcement of abortion and campaign finance regulating laws to be enjoined, and like this case, they involve whether it is proper to criminalize the conduct at all, rather than the process or punishment involved. But, the power of the state to criminalize most conduct governed by criminal statutes is unquestioned.

Put another way, very few criminal statutes would fail in the face of Motion to Dismiss on the pleadings in a civil case (although I do remember a case in Grand Junction, Colorado where someone was prosecuted for possession of a controlled substance that wasn't actually on the list of controlled substances, something only discovered many months into the case, and a Florida case where someone was charged with possession of prescription drugs pursuant to a prescription that resulted in a guilty plea despite a favorable appellate ruling).

Posted by: ohwilleke | Mar 31, 2009 2:07:59 PM

"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."

I just disagree with that conclusion. Based upon the description in the opinion and the law as quoted in the opinion, it seems just as likely that a reasonable jury would find that the images do in fact constitute child porn. Indeed, legal precedent implores just such a conclusion. People have been convicted of child porn charges even when the victim was fully clothed.

The judge claims that in his opinion there is a reasonable likelihood that the plaintiffs will prevail but stunningly offers no support for that thesis. While I understand this is not a full trial, the fact that the judge offers no legal citations to support this claim is sad. Can he point to even one other adjudicated case with similar facts in PA or elsewhere that went to trial and were there was a not guilty verdict? I think not.

Framing this as an issue of free speech is simply bogus. There is no free speech right to child porn. That was laughed out of the Supreme Court. I certainly hope the prosecutor takes all necessary legal steps to pursue this case. Justice demands it.

Posted by: Daniel | Mar 31, 2009 4:28:37 PM

"People have been convicted of child porn charges even when the victim was fully clothed"

really? where? Can you show one appellate decision which so holds?

Posted by: S.cotus | Apr 1, 2009 12:22:51 AM

S.cotus.

U.S. v. Knox (1994) (3rd Circuit) is still good law as far as I know.

Posted by: Daniel | Apr 1, 2009 12:17:16 PM

Daniel,

The Pennsylvania Statute seems to require nudity (or some other specified conduct, which is lacking here).

From the Opinion:

"The statute in question, 18 PENN. STAT. § 6312, prohibits the distribution of images depicting a prohibited sexual act, and defines “prohibited sexual act” to mean “sexual intercourse . . . masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.”

In addition, the statute requires distribution--the girls' contention is that the pictures were distributed by others against their wishes, and apparently there was no evidence whatsoever that is not true.

Two of the girls were pictured in their bras, while 1 was pictured with a towel wrapped "below her breasts" coming out of the shower.

Posted by: Philistine | Apr 1, 2009 1:14:59 PM

It's been a long time since law school and, while I think it would be absurd for the state prosecutor to bring charges in this case, can someone explain why the (Younger?) Abstention Doctrine doesn't appply?

Posted by: anon | Apr 1, 2009 11:44:34 PM

As the grandmother of a soon-to-be teenager, this issue is of real concern to me. I see a whole new opportunity for the creation of lots more sex offenders, to whit, the parents (and grandparents?). If the cell phone used to take and send the pictures is a "criminal tool," then isn't providing the criminal tool used to create child pornography a crime? And they are providing it to a minor!! I see myriad "conspiracy to commit child pornography" charges looming. This is absurd, right...?

But seriously, wouldn't it make more sense to encourage parents to buy their kids cell phones that don't have cameras?

Posted by: disillusioned layman | Apr 2, 2009 9:14:57 AM

The core holding in the case of Younger v. Harris, 401 U.S. 37 (1971), was that (per the syllabus of the case): "Federal courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate in that (unlike the situation affecting Harris) there is a threat to the plaintiff's federally protected rights that cannot be eliminated by his defense against a single prosecution."

The gist of the federal trial judge's ruling in this case on the Younger issue is that by threatening prosecution if a punishment is not accepted, without actually bringing a criminal case, the prosecutor has chilled free speech in the entire community (e.g. through future cell phone pictures of a similar nature which are expressive and not pornographic) without providing the judicial forum to adjudicate that validity of the prosecutor's claims through a defense to a criminal (or in this case, a juvenile court) action.

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