'Sexting' on trial

Provocative Pose

When school officials in Tunkhannock, Pennsylvania, found risqué pictures of teenage girls on several students' cell phones in October 2008, Wyoming County District Attorney George Skumanick Jr. saw it as a teachable moment. He sent letters to the parents of about 20 students who either appeared in the photos or had them on their phones, threatening the teenagers with child pornography charges if they declined to take part in "a six to nine month program which focuses on education and counseling."

Although Skumanick assured the parents that "participation in the program is voluntary," several mothers objected to his bullying, arguing that it violated both their daughters' First Amendment rights and the parents' 14th Amendment right to direct their children's upbringing. In March the U.S. Court of Appeals for the 3rd Circuit, finding that the mothers had a strong case, upheld a preliminary injunction that barred Skumanick from following through on his threat.

Skumanick had argued that even photos of teenagers in bathing suits could qualify as child pornography if they were posed "provocatively." The 3rd Circuit did not address that issue or the related question of whether the pictures were protected by the First Amendment. But it found that the self-criticism Skumanick tried to impose on the girls—which included writing an essay explaining "what you did," "why it was wrong," and who was victimized by it—implicated the First Amendment guarantee against forced speech.

The prosecution threat might nevertheless have been permissible, the court said, if Skumanick had probable cause to believe the girls had committed a crime. But since "appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo," he did not.

Last fall Skumanick, a Republican, lost his bid for a sixth term by an eight-point margin. His successor, Jeff Mitchell, attributed the surprise outcome partly to the "sexting" episode, telling The Tunkhannock Times, "I think the people were concerned with the media circus that it created."