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January 15, 2010

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

The title of this post is the headline of this article in The Legal Intelligencer available via law.com.  Here are the details concerning a case that not only is the first federal circuit court encounter with "sexting," but also raises some important issues of federalism and prosecutorial discretion:

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 [ruling here].

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 [available here], 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."

Some related "sexting" posts: 

UPDATE:  This subsequent article from theThe Legal Intelligencer, which is headlined "3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography," provides some notable highlights from the oral argument:

As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.

The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting. "I don't know of anything that says a district attorney's office is allowed to, in effect, play the role of teacher," Judge Thomas L. Ambro said.

But attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., argued that Skumanick was right to take the cases seriously when school officials informed him of a rash of sexting incidents, and that each of the students had the option to refuse the class and "face the music" in a juvenile court proceeding. ...

Donohue insisted that the program was a proper response to a rash of incidents in which girls had transmitted nude photos of themselves for no other purpose than sexual gratification. "Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves," Donohue said. "If that's your goal -- to protect them -- then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?" Ambro asked. ACLU legal director Witold Walczak told the judges "what we have here is a district attorney's office that has a fundamental misunderstanding of child pornography laws."

But Walczak, too, was peppered with some tough questions as the judges pondered whether the ACLU's approach, and Munley's injunction, were legally sound. Walczak urged the judges to focus, as Munley had, on the nature of the images.

"You don't have pubic area much less genitalia exposed here," Walczak said. "We've been mystified as to how anyone could look at these two photos and say these are second-degree felonies, which can be punished up to 10 years." Sexting "is a vague term," Walczak said, that "covers everything from the lovely to the laughable to the lewd and the lascivious."

But when Ambro asked if the decision to prosecute should be left to the district attorney, Walczak insisted it should not because prosecutors have no right to threaten charges where there is no probable cause and where the images are constitutionally protected.

Chagares said the court might be inclined to agree with Walczak about the education program, but asked: "Should we be serving as a screening mechanism for sexting cases -- or any other kind of cases?"

Walczak said he believed the federal courts "should stand as a bar to any state official who is imminently violating or threatening to violate somebody's constitutional rights -- and that's what Judge Munley did in this case."

January 15, 2010 at 10:50 AM | Permalink

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I haven't seen the pictures, obviously. But, so long as all "sensitive" areas are covered, I find it hard to believe that someone dressed and fully covered in a towel and another in a bathing suit should be classified as pornography. It may be risque, but it's not pornography, subjecting them to prison and sex-offender reporting requirements.

However, I am not sure that the choice given to the parents was unconstitutional or that the state is forcing them to speak. The parents could have consented to their child attending and completing the class (which would have required them to write about why their conduct was "wrong") or face criminal prosecution for the conduct. Based on my first comment, I think the state would (and should) loose at a criminal trial. But if the parents are that confident that what their child did was protected speech, then they are under no obligation to take the "education class" or to say they acted wrongly. Instead, opt for trial. In essence, the parents are being given a choice. There is no compulsion; there is no forced speech. There is no commandeering of child raising duties.

While I think the prosecutor’s tactics here are DEPLORABLE as a matter of policy, he/she is giving the parents a constitutional choice: “I will not prosecute if you take the class.” An analogy would be if a person got pulled over for swerving and blew a .07. The prosecutor could still constitutionally say, “I still think you were driving under the influence and will go forward with criminal charges. But because it’s a mitigated case, I’ll drop all charges if you complete a the DUI class and write about what you did as wrong.” The defendant may very well say “But I wasn’t under the influence; I didn’t do anything wrong.” Fine, then go to trial. It’s a constitutional choice.

Posted by: DEJ | Jan 15, 2010 1:05:25 PM

DEJ makes a poor analogy. Everyone agrees that the state has the authority to prosecute a DUI case; the proesecutor therefore has the authority to waive prosecution if the defendant makes certain concessions.

The parents' argument is that the state did not have the authority to threaten these children with prosecution. This isn’t a case where the defendant says, “But I wasn’t under the influence.” The children and their parents concede that the photos were taken and transmitted; the argument is whether, assuming that is true, a child porn felony (entailing lifetime sex offender registration) was committed.

Mind you, even those parents who took the deal were obligated to accept a juvenile misdemeanor plea, which they did only to avoid an even more disastrous alternative that it is far from clear the prosecutor had any right to threaten them with.

In the free-speech context, courts have long recognized that a defendant should not have to go to trial, and lose, before having the opportunity to test whether their actions are constitutionally protected. It is in this context that the District Court entertained the parents’ suit. In this case, apparently the prosecutor voluntarily deferred the entry of charges until the legality of his actions is resolved. We do not yet know whether he is still willing to offer the original deal if he wins this round.

Posted by: Marc Shepherd | Jan 15, 2010 1:33:51 PM

Doesn't this all lead to a disrespect for the law and the legal establishment in general. It is an interesting exercise in examining federalism and prosecutorial discretion, but the cost of this legal and mental exercise is great.

The financial cost to the parents - and the tax-payers - is not insignificant, but the cost in trust between the governed and government is enormous. The enormity of the law and criminal code poses endless questions that need to be answered and to be addressed, but we are eroding trust and respect for the authority of the law

Posted by: beth | Jan 15, 2010 2:18:57 PM

The lawyer is trying to generate a huge area of business for both prosecutor and defense attorney. I hope the court will control the temptation to open a new area of lawyer rent seeking. This misconduct deserves parental punishment but not a criminal trial, sentencing, etc. There is a right to associate with one's children covered by the Free Association Clause. This attempt to take over an area of child rearing involves bad faith. It is a crime itself. The prosecutor should be prosecuted for fraud and theft by deception for this prosecution. He abuses the powers of his office to generate more revenue for the office and for the lawyer profession.

Because kids do not have a lot of assets, I predict the court will take a pass on opening up this area of prosecution and lawyer rent seeking.

Posted by: Supremacy Claus | Jan 15, 2010 2:20:58 PM

I recognize that there is no free speech component to a DUI prosecution. But the analogy may still stand.

"Everyone agrees that the state has the authority to prosecute a DUI case."

And everyone agrees that the state has the authority to prosecute a child pornography production case.

The issue is whether the pictures were, in fact, child pornography. Marc recognizes this: "the argument is whether, assuming that is true, a child porn felony ... was committed." It is precisely because they believe the pictures aren't child pornography that the parents argue "that the state did not have the authority to threaten these children with prosecution."

Whether the pictures are child pornography is an issue for the criminal jury to decide. Of course, a judge could also decide it under a Rule 29 (federal) motion, but aside from that, it's a jury question.

If defendants are entitled to a determination before criminal trial of whether the pictures are, in fact, child pornography, then you would be correct. I am no first amendment expert, so if this is the case, I genuinely would like to know. The principle you cite, it seems to me, would apply when the conduct has not yet been completed. In other words, a person should not have to first engage in the speech to only then go to trial and lose in order to be told its not protected. In this case, the pictures have already been taken; the production has already occurred. There is no chilling of speech that occurs by having to wait until trial to find out if its protected because the speech has already occurred. As a criminal lawyer, it seems the best place to decide weather an element of an already completed offense is satisfied is with a jury. (Albeit, this is a juvenile case where no jury would be required).

Posted by: DEJ | Jan 15, 2010 2:29:49 PM

I think DEJ is still incorrect as to the law. The parents’ claim is that their civil rights were violated, because the prosecutor employed threats of a felony case that he had no legal authority to prosecute. Juries do not decide when a constitutional violation has taken place; judges do.

DEJ is correct that if the parents lose this round, and the case goes to trial, the jury could still decide as a matter of fact that these photos are not child porn. But the question whether this case is even presentable to a jury is one of law., not fact. Judges decide that, not juries.

Obviously, for the parents to prevail, the court must find that the prosecutor unambiguously exceeded his legal authority. If it’s a close call, the prosecutor probably wins, not because he is necessarily right, but the parents have the burden of persuasion, and it is a steep one.

Posted by: Marc Shepherd | Jan 15, 2010 2:55:59 PM

"But, so long as all "sensitive" areas are covered, I find it hard to believe that someone dressed and fully covered in a towel and another in a bathing suit should be classified as pornography. It may be risque, but it's not pornography, subjecting them to prison and sex-offender reporting requirements."

I would just like to point out that this is not the law. The SC has upheld convictions on specifically this point. One can be guilty of child porn even when fully clothed. See US vs Knox (1994).

Posted by: Daniel | Jan 15, 2010 2:59:13 PM

Very useful decision. Addressed abstention, and that a TRO is possible before losing a trial, before damages have taken place.

Posted by: Supremacy Claus | Jan 15, 2010 7:26:23 PM

sorry beth!
"Doesn't this all lead to a disrespect for the law and the legal establishment in general. It is an interesting exercise in examining federalism and prosecutorial discretion, but the cost of this legal and mental exercise is great.

The financial cost to the parents - and the tax-payers - is not insignificant, but the cost in trust between the governed and government is enormous. The enormity of the law and criminal code poses endless questions that need to be answered and to be addressed, but we are eroding trust and respect for the authority of the law"


It's sad what's happening but the GOVT is the one hell bent on making EVEYTING ILLEGAL. They are the ones destroying the trust between them and the citizens they WORK FOR.

plus of couse if the law is acting like a RETARD your not required to obey.

Posted by: rodsmith3510 | Jan 15, 2010 11:47:03 PM

rodsmith

You make my point. I do believe that excessive law and prosecution destroys our trust in our government. More and more law is incomprehensible, how can citizens know what the meaning is?

I do have weird speech (and writing) patterns, which sometimes get in the way of communication.

Posted by: beth | Jan 16, 2010 1:11:07 AM

I just read on Jonathan Turley's blog about the young soldier in Afghanistan who is facing child pornography charges and 10 years in prison because his mother sent him snapshots of his 4-year-old niece in a bathing suit. Have we lost our minds? How can I as a citizen retain any vestige of respect for what our legal system has become? Forget the idea of "protecting" me or my children. The system's only objective seems to be ensnaring as many of us as possible. When I read that one of the objectives of sentencing is to promote "respect for the law," I don't know whether to laugh or cry.

Posted by: disillusioned layman | Jan 16, 2010 1:02:52 PM

i have to agree diss. From where i and 100's of thousands if not millions sit. the govt is a bigger and more immediate THREAT to us than anyone else. If they don't wake up and smell the coffee they are going to discover that once the public get's fedup and tired of them...THEY ARE GONE.

just ask the old comrade's in russia's Soveit Community Party when the people finaly said OUT!

Posted by: rodsmith3510 | Jan 16, 2010 5:38:29 PM

The way this is all seriously discussed and parsed without outrage is frightening. We are awash in the language and gymnastics of the law and don't know we've fallen down the rabbit hole.

After these encounters with the criminal justice system there is no respect for the law, nor should there be. The evidence of every prosecution becomes suspect.

Posted by: beth | Jan 16, 2010 7:20:40 PM

beth,

You wrote:

"The financial cost to the parents - and the tax-payers - is not insignificant, but the cost in trust between the governed and government is enormous. The enormity of the law and criminal code poses endless questions that need to be answered and to be addressed, but we are eroding trust and respect for the authority of the law"

Those with an authoritarian mindset (see the work of Canadian psychology professor Bob Altemeyer), which includes many police officers, prosecutors and judges at the state and federals levels, do not primarily seek trust or respect.

What they seek is obedience.

Posted by: Gaius Gracchus | Jan 16, 2010 9:49:59 PM

"We are awash in the language and gymnastics of the law and don't know we've fallen down the rabbit hole."

No, what we are awash in is special pleas. When people who act like us and look like us take picture of children it's "innocent". When people who don't look like us and act like take pictures of children it's "child porn" even though there is in fact no *objective* difference in the pictures.

Either this is child porn or there are thousands of people who have been sentenced to jail wrongly. But what is good for the white middle class should be good for all or none.


Posted by: Daniel | Jan 16, 2010 10:29:15 PM

beth,

Keep in mind that the only one who could see the absurdity of Wonderland was Alice. The other inhabitants thought things there were perfectly normal. So we have a system of so-called "justice" where the concepts of right and wrong have become irrelevant, and most of those involved in it have lost the ability to be outraged at or even to perceive injustice. Those who have gone down the legal rabbit hole are reduced to disputing miniscule details of the process and are unable to see that the process itself is flawed.

Many of us outside the legal profession, however, are horrified at what our system of "justice" has become, and increasingly terrified of being caught up in it. Unfortunately, most lawyers appear to view the rest of us with contempt and consider our opinions to be irrelevant.

Posted by: disillusioned layman | Jan 18, 2010 12:39:29 AM

well disillusioned...might be time to exercise that old saying

"shoot them all and let god sort them out!"

the politicians and lawyers i mean!

heck let's even throw in the religious leaders and media leaders!

wanna bet the crime rate would go through the floor! LOL

Posted by: rodsmith3510 | Jan 19, 2010 2:52:54 AM

In the case, 2 of the girls were being threatened with felony charges for a picture taken by someone else, that showed up 2 years later in which they are visible from the waist up and wearing bras. Since they did not produce or disemminate the picture, how is this justifiable as it doesn't even meet the definition of child porn, much less distributing child porn? They are the victim, not the perp.

The problem is that the DA could only identify the people in the picture and was trying to make an example out of them, but someone stood up to him and now he can't back down without having his discretion questioned.

Posted by: David | Jan 20, 2010 10:52:42 AM

I am a graduate student working on a Public School Law research paper. My paper is on cell phones in the public school. Instead of spending all my time trying to police students to keep the phones out, my students and I have a contract, and I make them utilize the phones in the classroom as part of the curriculum. If they are having to use the phones to complete assignments, and I keep them engaged throughout the entire class session, they won't have time to use it for foolishness. If they are wanting to text, then the text has to be to another student across the room who is their partner, and they are trying to beat another team in completing the assignments for points,whether it is a daily assignment, or a "buddy" test. If you can't beat'em, keep'em engaged.

Posted by: Pamela Adamson | Jul 18, 2011 8:00:41 PM

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