This week a federal appeals court upheld a preliminary injunction preventing a Pennsylvania prosecutor from forcing girls into "education and counseling" by threatening to prosecute them on child pornography charges for appearing in "sexting" photos. The case began in October 2008, when school officials in Tunkhannock, Pennsylvania, found nude and semi-nude pictures of teenaged girls on several students' cell phones. The matter was referred to Wyoming County District Attorney George Skumanick Jr., who sent letters to the parents of about 20 students who either had appeared in the photos or had them on their phones, inviting them to participate in "a six to nine month program which focuses on education and counseling." Among other things, the program involved writing essays of self-criticism "explaining why you are here," "what you did," "why it was wrong," who was victimized by it, and how it "affect[ed] the victim, the school, [and] the community." Skumanick told the parents that "participation in the program is voluntary"—except that students who did not get with the program would face felony charges of possessing or distributing child pornography. Not surprisingly, most of the students enrolled in Skumanick's re-education sessions. But the mothers of three girls sued him in federal court, arguing that his threat violated their 14th Amendment rights to direct the upbringing of their children and their daughters' First Amendment rights by compelling them to say things they did not believe. A federal judge, finding that the plaintiffs were likely to prevail, issued a preliminary injunction in March 2009, and on Wednesday the U.S. Court of Appeals for the 3rd Circuit upheld that decision.
Although the 3rd Circuit's ruling does not hinge on whether the cell phone pictures did in fact constitute child pornography, the theory behind Skumanick's prosecution threat is worth noting because it shows why he never should have been in the position to make such decisions. (The voters of Wyoming County, who booted him out of office while the case was on appeal, apparently agreed.) While one of the plaintiffs appeared topless in a towel, the other two, 12 and 13 at the time, were shown from the waist up wearing opaque white bras, one of them talking on the phone, the other flashing a peace sign. Although their parents thought the girls were just goofing around, Skumanick explained that they were posed "provocatively" and therefore had participated in the production of child pornography. Likewise another girl who was photographed in a bathing suit. Skumanick refused to explain the legal test for provocativeness, so presumably it depended on his own subjective reaction to the photographs, which says more about him than it does about the girls' intent in posing for the pictures. In any event, the 3rd Circuit noted, "appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo," so Skumanick did not have probable cause to charge the girls. Hence the girls and their mothers had a strong case that his threatened prosecution amounted to an illegal act of retaliation for the exercise of their constitutional rights.
Legal issues aside, the case illustrates how sexting drives government officials to absurd lengths, always (even in cases of actual prosecution) for the sake of teaching kids a lesson and saving them from themselves, even when the lesson causes more damage than a risqué photo ever could. The 3rd Circuit's decision is here (PDF). Radley Balko discussed the case in a January column. More on sexting, including "Anatomy of a Child Pornographer," Nancy Rommelmann's eye-opening July 2009 story for Reason, here.