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January 13, 2010

‘Sexting’ case to get day in court

Tunkhannock Area teens’ cell-phone image swapping is the focus of federal appeals court hearing on Friday.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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PHILADELPHIA – Attorneys for three Tunkhannock Area teens threatened with child porn charges after photos depicting them partially clothed were found on a classmate’s cell phone will appear before a federal appeals court Friday to argue the merits of the case.

Prosecutors and civil libertarians say much is at stake as the Third Circuit Court of Appeals considers the case, which will help establish the legal parameters prosecutors must consider when deciding whether to file charges in so-called “sexting” cases.

“It’s the first case in the country to challenge the constitutionality of prosecutors’ authority to bring child porn charges in the context of sexting,” said Witold “Vic” Walczak, an attorney with the American Civil Liberties Union who is representing the teens

The case stems from a court challenge the parents of Tunkhannock Area High School students Marissa Miller, Grace Kelly and a third juvenile identified as “Nancy Doe” filed last year against former Wyoming County District Attorney George Skumanick.

The teens and their parents sought a temporary restraining order after Skumanick threatened to file a felony charge of possession of child pornography against the girls and others if they did not take part in an educational program that addressed the dangers of sending sexually suggestive images via the Internet or by cell phone.

U.S. District Judge James Munley in March granted the restraining order, temporarily blocking Skumanick from filing the charges or requiring the teens to attend the program. Skumanick then appealed that decision to the Third Circuit Court.

The practice of teenagers sending provocative digital images of themselves via cell phones has become a national concern. Studies have shown that roughly 20 percent of Americans age 13-19 have done it, Munley noted in his opinion.

In the case at issue, the dispute centers on whether the images of the girls meet the legal definition of child pornography and whether Skumanick’s threat to prosecute them violated their First Amendment right to free speech. Skumanick lost his bid for re-election in November but remains a defendant because the case was initiated under his tenure.

The controversy began in October 2008 when Tunkhannock school officials confiscated five cell phones and discovered the boys who owned them had been trading digital images of scantily clad females, including Miller, Kelly and Doe.

The image of Miller and Kelly shows the girls standing together in their bras. The image of Doe shows her just getting out of the shower, topless, with a towel wrapped around her waist.

Skumanick’s attorney, Michael Donohue of Scranton, said the case before the Third Circuit Court pertains only to Doe. That’s because Skumanick determined after the court challenge was filed that he would not seek to file charges against Miller or Kelly. He based the decision on testimony at the hearing on the restraining order.

Donohue said Skumanick has pressed on with the case because he believes strongly that “sexting” is dangerous.

“He was motivated by his desire to protect children. The transmission of photos of naked children draws predators,” Donohue said. “The entire basis of the juvenile code is to save children from their own bad judgment.”

But the juveniles’ parents say Skumanick’s approach was too heavy handed. They contend the girls, who maintain they did not send the digital images, are being treated as criminals when in fact they are victims. They allege Skumanick used the law to retaliate against them because they refused to acquiesce to his belief that they had done something wrong.

Walczak said the ACLU took the case because it believes it’s important for the courts to set a standard for prosecutors to help them decide when they should or should not file charges relating to the dissemination of digital images.

“It’s important to put up a least a yellow light for prosecutors who are thinking about bringing charges for sexting,” Walczak said. “There seems to be a knee-jerk reaction by many prosecutors that if you find some naked photos, you throw the book at whoever you can identify.”

Walczak and Donohue are scheduled to argue the case before the Third Circuit Court in Philadelphia at 9:30 a.m. Friday.

Regardless of how the court rules, the case will ultimately be returned to Munley for a final ruling regarding the merits of the case, Walczak said. That’s because Munley’s initial ruling was for a retraining order, which is a temporary order.

The Third Circuit’s opinion is important because it will set the standard by which Munley and other courts evaluate “sexting” cases, Walczak and Donohue said.

“The reason these photos can be illegal is they involve the exploitation of minors. If you take the photo yourself, there is no exploitation, so if you do it yourself, it’s constitutionally protected,” Walczak said. “That’s not to say it’s smart. It’s probably a really bad idea. But you can’t be criminally prosecuted.”

Donohue said he fears the court will set a dangerous precedent if it rules against Skumanick.

“If they uphold Judge Munley and hold that prosecutors and counties can be sued if they take steps to prevent kids from doing this, it will have a chilling effect on those prosecutors,” Donohue said. “The result will be that this dangerous and bad behavior on the part of kids will go unrestrained and unchecked.”

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

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