"'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: 

• Federal district judge enjoins controversial state sexting prosecution
• The many fascinating legal and social issues swirling around "sexting"
• Ohio ACLU writes to local lawmakers and prosecutors about sexting
• "Ohio judge sentences 2 teens for sexting"
• Some of the latest "sexting" news and notes
• Vermont legislature considering "sexting exception" to child porn prohibitions
• Pennsylvania town struggling with a "rash of sexting incidents" 

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."