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Court: Charges vs. teen girl can’t be pursued; no broader ruling issued

March 18, 2010

A win for plaintiff in ‘sexting’ case

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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TUNKHANNOCK – A federal appeals court has ruled a Wyoming County prosecutor cannot pursue charges against a teenage girl whose nude photo was transmitted to a cell phone, but stopped short of issuing a broader ruling that would address whether the activity – known as “sexting” -- violates child pornography laws.

The decision Wednesday by the Third Circuit Court of Appeals is a victory for the plaintiff, Mary Jo Miller. But it was unclear how much of an impact the ruling will have on other sexting cases around the country.

Attorneys for the American Civil Liberties Union, which represented Miller, and former Wyoming County District Attorney George Skumanick had looked to the ruling to establish guidelines prosecutors could follow when deciding whether to prosecute minors who appear in the photos.

Witold “Vic” Walczak, attorney for the ACLU, said he believes the decision does that to some extent. But he acknowledged it does not resolve all the constitutional issues related to the matter.

The key issue, Walczak said, is the court found that merely appearing in a photo is not sufficient to warrant charges against the subject.

“The court held that, even if the photos met the definition of child pornography – they didn’t say if they did or didn’t – you could not prosecute the girls for simply appearing in the photos. That had been our big contention,” Walczak said.

Prosecutors also secured a partial victory, said Skumanick’s atttorney Michael Donohue, as the court stopped short of declaring that the dissemination of the photos is protected by the First Amendment, which guarantees a person’s right to free speech.

The case stemmed from photos depicting Miller’s daughter and two others, who were partially clad, that were discovered on the cell phones of several students at Tunkhannock Area High School in 2008.

Miller and the other parents filed a federal court challenge after Skumanick, who has since left office, threatened to charge the girls with possession of child pornography unless they attended an educational program designed to teach juveniles about the dangers of sexting.

Miller’s daughter, Marissa, and her friend, Grace Kelly, who were both 12 at the time, appeared in one of the photos clad in underwear and their bras. A third teen, identified as Nancy Doe, 16, was depicted emerging from a shower topless.

The Third Circuit case pertained only to Doe, as Skumanick later decided he would not seek to file charges against Miller and Kelly. Mary Jo Miller continued on as a plaintiff based on philosophical reasons.

Miller and the other parents had objected to their children participating in an educational program, in part, because it went beyond the dangers of sexting. It included topics such as “what it means to be a girl in today’s society.” They also believed the girls did nothing inappropriate and objected to a requirement that they write an essay explaining why what they did was wrong.

In a hearing before the Third Circuit held in January, Walczak argued Skumanick had no legal basis to file the charges because the photos did not meet the legal definition of child pornography. He maintained Skumanick’s actions were taken solely to retaliate against the girls and their parents for refusing to take part in the program.

The Third Circuit Court agreed Skumanick failed to show he had a legal basis for the charges. But its decision was based on the fact Skumanick had not presented evidence the girls knowingly transmitted the photos. It did not address the issue of whether the content of the photos constituted child pornography.

The court also agreed that Skumanick’s attempt to force the youths to attend the program violated their parents’ constitutional right to raise their children as they see fit, and the girls’ constitutional right to be free from forced speech. It did not address the more general issue of whether the dissemination of the photos was protected by the First Amendment.

Although it did not resolve all constitutional issues regarding the debate over sexting, Walczak said he believes the decision is a “good start.”

“If nothing else, it’s important that prosecutors recognize there are constitutional limits on their authority to prosecute kids involved in sexting,” Walczak said. “You can’t go after kids simply for appearing in photos.”

Donohue said he was “disappointed” that the court ruled against Skumanick, but is pleased that it did not issue a broader ruling regarding the First Amendment issue.

“We are relieved that the court specifically stated that they are not holding that the transmission of naked photos of a child by a child is protected by the First Amendment,” Donohue said. “That would have been a disaster for district attorneys.”

The court also left open the possibility that charges could be filed against Doe in the future should evidence surface that she knowingly transmitted the photos.

Donahue said that decision will be up to Wyoming County’s new district attorney, Jeff Mitchell, who defeated Skumanick in the November general election.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

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