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Federal appeals court rules against child pornography charges in texting case

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Court of Appeals for the Third Circuit ruled Wednesday that a Pennsylvania prosecutor cannot file child pornography charges against a teenage girl whose topless photo was found on a number of her schoolmates' cell phones, upholding a preliminary injunction. Wyoming County prosecutor George Skumanick threatened to bring felony charges against several students who possessed or appeared in nude and semi-nude pictures of underage girls found on cell phones of students in the Tunkahannock, Pennsylvania, School District if the students did not attend a program on sexual violence and gender identity. Three girls refused to attend the class and sought a temporary injunction prohibiting prosecution, which the US District Court for the Middle District of Pennsylvania issued last March. Skumanick's successor promised not to prosecute two of the girls, leaving only one plaintiff on appeal. The appellate court held that the district court properly issued the injunction since it appeared that the state threatened to prosecute the girl in retaliation for exercising her First Amendment right not to write certain essays that would have been part of the program and for her parents exercising their Fourteenth Amendment right to control their child's education. The court also found that it was unlikely that the prosecution could be successful since there was no evidence that the girl manufactured or distributed the photo. The court stated: At this preliminary stage we conclude that plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that Doe committed a crime, but instead in retaliation for Doe's exercise of her constitutional rights not to attend the education program. Therefore, we affirm the grant of a preliminary injunction and remand for further proceedings.The lawyer for Skumanick said that while he was disappointed with the ruling, he was pleased that the court declined to rule that the photos themselves were protected by the First Amendment.The plaintiffs were represented by the American Civil Liberties Union of Pennsylvania (ACLUPA) and filed suit against Skumanick last year. ACLUPA lawyer Witold Walczak contends that the photos are protected by the First Amendment and that requiring the girls to attend a re-education program interferes with the parents' rights to raise their daughters as they wish. According to the complaint, 20 percent of teens nationwide have participated in the distribution of similar pictures, a phenomenon known as "sexting." This is the first circuit court ruling on the issue.

Full post as published by JURIST - The Paper Chase on March 18, 2010 (boomark / email).