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March 17, 2010

Third Circuit upholds bar on sexting prosecution threatened by state DA

The National Law Journal has this new piece, headlined "3rd Circuit Bars Prosecution Threat for Teen 'Sexting': Panel also found former DA had violated parents' rights by usurping their roles," which reports on this notable ruling today from the Third Circuit. Here is how the piece starts:

In the first case ever to challenge the constitutionality of prosecuting teens for "sexting," 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.... "An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," 3rd Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Walter K. Stapleton.

The full opinion in Miller v. Mitchell is available here, and Eugene Volokh has a lengthy discussion of the ruling in this post.

UPDATE:  How Appealing provides here lots of links to lots of media coverage in Miller v. Mitchell.

March 17, 2010 at 11:11 PM | Permalink


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ahh nice a FEW judges with a brain!

Posted by: rodsmith | Mar 18, 2010 2:27:39 AM

One has to note that lawyers with top grades and training are not saying something.

Go to 3.8 (a).


The ruling implies a per se violation. All legal costs should come from the personal assets of this self-styled prosecutor. He should lose the license. He should be made to attend classes on the rule of law and its value to society.

Next go to 8.3 (a).

Question. Say the New York Times reports this result. It has 100,000 attorneys who read the article and their ISP's recorded. Can we have a mass extinction of 100,000 lawyers' licenses for failure to report the prosecutor to the Disciplinary Counsel? I am not being sarcastic in asking. I do not know. I would like to think so. The language is very clear.

Posted by: Supremacy Claus | Mar 18, 2010 2:49:49 AM

Wow, SC, I like your point.

Posted by: tbucket | Mar 18, 2010 5:37:55 AM

Apparently the American Taliban Party has yet to pack the 3rd Circuit.

Posted by: John K | Mar 18, 2010 9:42:21 AM

good one SC after all THEY ARE OFFICERS OF THE COURT! if they see a crime they are REQUIRED to report it!

Posted by: rodsmith | Mar 18, 2010 3:19:19 PM

John: little quibble.

Taliban is covered and prohibited by Godwin's Law.


Posted by: Supremacy Claus | Mar 18, 2010 5:14:44 PM

Why is this case not covered by the Anti-Injunction Act? (28 U.S.C. 2283, I believe.) Since the first Judiciary Act, the federal courts are prohibited from enjoining State prosecutions. Although the CoA discusses Younger abstention, it does not discuss the Anti-Injunction Act. Was the issue raised by the parties? Isn't this nonetheless jurisdictional in nature (requiring sua sponte consideration)?

Posted by: Mark | Mar 18, 2010 9:59:26 PM

Mark, To answer your questions, the Anti-injunction act is not jurisdictional. The Anti-injunction act covers injunctions meant to stay extant proceedings, not threatened or future proceedings.

Posted by: s.cotus | Mar 18, 2010 11:31:11 PM

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