Legal News

Third Circuit Mulls DA-as-Teacher Allegations in ?Sexting? Case

By Ashby Jones

My property professor at Michigan was fond of saying that there may be more topics as interesting the law concerning property, but none more interesting.

Regardless of whether that’s true (I have my doubts), I’m going to borrow now the construction of the statement and apply it to a case currently confronting the Third Circuit in Philadelphia. There may be cases winding through American courts that are as interesting as Miller v. Skumanick. But we’re doubtful there are any more interesting.

Law Blog colleague Dionne Searcey wrote a WSJ piece on the suit shortly after it was filed last April.

The backstory: The district attorney in Tunkhannock, Pa., George Skumanick (pictured), took a novel approach after a handful of pictures turned up on cell phones at a local high school. He told parents they could either enlist their kids in an education program or have the teens face felony charges of child pornography.

Some found the approach strange on two fronts. First, some wondered whether Skumanick’s definition of child pornography wasn’t just a bit overly expansive. Others wondered whether Skumanick could legally pull such a stunt — condition avoiding charges on students attending a class.

In any event, the ACLU sued on behalf of three girls who refused to take the class.

In March of last year, Scranton, Pa., federal judge James M. Munley sided with the ACLU, issuing an injunction blocking Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected speech under the First Amendment.

On Friday, the Third Circuit heard arguments on the case. According to the Pennsylvania Legal Intelligencer’s Shannon Duffy, “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.”

But wait, that’s not all. Duffy writes that the judges were also inclined to declare that Skumanick violated the First Amendment rights of the girls with his threat of a criminal prosecution if they refused to take a class.

“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 Ambro said. Ambro reportedly asked if Skumanick’s education program — delivered with the threat of a prosecution — had intruded on the rights of the girls’ parents or amounted to improper “compelled” speech by the girls who would have been forced to write an essay admitting they were wrong to engage in sexting.

In response, Skumanick’s lawyer, Michael Donohue, said: “Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves,” Donohue said.

Responded Ambro: “If that’s your goal — to protect them — then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?”

Law Blog 5-Dollar Word of the Day: Escutcheon. Escutcheon? Not a word I’m familiar with. Merriam-Webster lists three definitions for the word: a defined area on which armorial bearings are displayed and which usually consists of a shield; a protective or ornamental plate or flange (as around a keyhole); and the part of a ship’s stern on which the name is displayed.

We’re assuming Ambro had something like the third definition in mind during oral arguments.

Full post as published by Law Blog - WSJ.com on January 19, 2010 (boomark / email).