My friends at the ACLU of Pennsylvania have filed a Complaint (PDF):
Plaintiffs in this civil rights action are three teenage girls and their parents. The Defendant, Wyoming County District Attorney George Skumanick, has threatened to prosecute the three girls for child pornography for their roles in the creation of two digital photographs unless the parents agree to place the girls on probation and send them to a five-week, ten-hour re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl. One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.
Skumanick nevertheless persists in threatening to prosecute the girls because he has deemed the photos "provocative." Since there is no basis to prosecute the girls for posing in photographs that plainly are not child pornography, in terms of content or production, Skumanick’s threat to prosecute the girls must be considered retaliation against the plaintiffs for asserting their constitutional rights – the parents’ right to direct their children’s upbringing and the girls’ rights both to free expression and against compelled speech – in refusing Skumanick’s demands. Accordingly, plaintiffs seek declaratory and injunctive relief to enjoin Skumanick from bringing the retaliatory criminal charges against plaintiffs based on their refusal to accede to his demand that they submit to probation and participate in the re-education program.
Or, as ACLU-PA legal director Witold "Vic" Walczak explained yesterday, "Kids should be taught that sharing digitized images of themselves in embarrassing or compromised positions can have bad consequences, but prosecutors should not be using heavy artillery like child-pornography charges to teach them that lesson. These are just kids being irresponsible and careless; they are not criminals."
More from the Complaint:
- The photo was an approximately two-year-old picture taken when Marissa [Miller] and plaintiff Grace Kelly were thirteen years old. It showed the two girls from the waist up, each wearing a white, opaque bra. Marissa was on the phone while Grace held up her fingers, making a peace sign.
- When Ms. Miller protested that the photos could not be considered child pornography because the girls were not even naked, Skumanick insisted that they could be because the girls were posed "provocatively."
- When the Millers’ objected and argued that their daughter and her friend had a right to a jury trial, Skumanick replied that in Juvenile Court there was no right to a jury trial.
- Skumanick also told the Millers’ that unless their daughter accepted the plea deal he would prosecute both girls for felony child-pornography charges.
- The meeting on the evening of February 12 was held inside the County courthouse.
- Skumanick reiterated to a group of about twenty parents and students that he was prepared to file felony charges against any minor who refused to submit to probation, pay the $100 program fee, and participate in (or fail to successfully complete) the re-education program.
- Skumanick indicated that he might lessen the six-month probation period if the children completed the program to his "standards."
- One parent stood up during the meeting and asked how Skumanick could be prosecuting his daughter because, according to him, she was in the photograph wearing a bathing suit. Skumanick told the assembled crowd that she was posed "provocatively," which made her subject to a child pornography charge.
- In response to Skumanick’s comment, Marissa’s father stood up and asked who was deciding what was provocative. Skumanick replied that he was not going to argue and that he could charge all of the minors there that night but was instead offering them a plea deal. Skumanick also told Mr. Miller that, "these are the rules if you don't like them, too bad."
Thankfully, there's another answer than "too bad," and here's where your friend, The First Amendment, comes in:
- The plaintffs have violated no other statute of the Commonwealth of Pennsylvania by allowing themselves to be photographed in private in their underwear or topless.
- Skumanick’s threat to prosecute the three girls criminally is completely without merit, and thus is made in bad faith as he has no, and can have no, reasonable expectation of obtaining a conviction.
- Indeed, the two photographs at issue are expression that is protected by the First Amendment, which means that any prosecution brought by Skumanick would be unconstitutional.
- Unless the photographs were produced by abusing or coercing the minors, which they were not, or they show the minors engaged in sexual activity or lasciviously displaying the genitals, and again they do not, the photos are expression protected by the First Amendment to the U.S. Constitution.
- Moreover, Skumanick’s decision to prosecute the subjects of the photographs, the three plaintiff minors, is unprecedented and stands anti child-pornography laws on their head. Anti-child-pornography laws are intended to protect the children shown in the photos and videos, and plaintiffs’ counsel has found no published Pennsylvania or federal court decision sustaining such a prosecution against minors shown in such pictures.
- The plaintiff minors in the photos are, if anything, the victims in this case. Someone else — not they — disseminated the photos without their permission to a large group of people.
- Skumanick’s threatened prosecution chills Plaintiffs’ First Amendment right of expression, causing them concern about whether they may photograph their daughters, or whether the girls may allow themselves to be photographed, wearing a two-piece bathing suit.
- The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them "provocative."
- Furthermore, Skumanick’s insistence that the plaintiff parents force their children to attend a re-education course interferes with the parents’ right to direct and control their children’s upbringing. Among other things, the course requires the girls to "[g]ain an understanding of how [their] actions were wrong," "gain an understanding of what it means to be a girl in today’s society," and "[i]dentify non-traditional societal and job roles." While a prosecutor may be able to force the girls to participate in such a program as part of an informal disposition when there is probable cause to believe the girls committed a crime, in the absence of such evidence the threatened prosecution to force the girls’ participation violates the parents’ Fourteenth Amendment right to direct their children’s upbringing.
- Skumanick’s demand that the girls participate in the re-education program, which requires them to write a homework paper explaining "how [their] actions were wrong," violates the plaintiff minors’ right to be free from compelled speech.
- Absent injunctive relief, preliminary and permanent thereafter, plaintiffs’ constitutional rights will be irreparably harmed. Additionally, since Skumanick enjoys prosecutorial immunity, plaintiffs have no remedy at law hould this Court deny injunctive relief.
I don't think there will be much disagreement here that criminal threats to the girls involved are balderdash, and that this is a worthy and necessary complaint.
The next question is the tricky one: what about the teenage boys who distributed the photos? Is it the place of the criminal law to punish them for distributing these exploitative pictures of their classmates? Is it something that should be left to school officials to handle through internal disciplinary processes? Dahlia Lithwick, Slate:
One quick clue that the criminal justice system is probably not the best venue for addressing the sexting crisis? A survey of the charges brought in the cases reflects that—depending on the jurisdiction—prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos, and the hapless forwarders of smutty photos with the same crime: child pornography. Who is the victim here and who is the perpetrator? Everybody and nobody.
There may be an argument for police intervention in cases that involve a genuine threat or cyber-bullying, such as a recent Massachusetts incident in which the picture of a naked 14-year-old girl was allegedly sent to more than 100 cell phones, or a New York case involving a group of boys who turned a nude photo of a 15-year-old girl into crude animations and PowerPoint presentations. But are such cases really the same as the cases in which tipsy teen girls send their boyfriends naughty Valentine's Day pictures? ...
The real problem with criminalizing teen sexting as a form of child pornography is that the great majority of these kids are not predators and have no intention of producing or purveying kiddie porn. They think they're being brash and sexy, in the manner of brash, sexy Americans everywhere: by being undressed... Many  experts insist the sexting trend hurts teen girls more than boys, fretting that they feel "pressured" to take and send naked photos. Yet the girls in the Pennsylvania case were charged with "manufacturing, disseminating or possessing child pornography" while the boys were merely charged with possession. This disparity seems increasingly common. If we are worried about the poor girls pressured into exposing themselves, why are we treating them more harshly than the boys?
Why, indeed? I believe we've got plenty to discuss.
edited, 1pm: BONUS Round! This just in:
A 14-year-old girl faces child pornography charges after she allegedly posted nearly 30 nude pictures of herself on a social networking site, authorities said.
Detectives with the Passaic County (NJ) Sheriff’s Department’s Internet Crimes Unit arrested the teen Tuesday. The National Center for Missing and Exploited Children contacted sheriff’s detectives about someone posting photos of an underage nude girl on a MySpace profile. The center, which monitors social networking sites for illegal images of children, contacted county detectives through the State Police’s Internet Crimes Against Children Task Force, said Bill Maer, the sheriff’s department spokesman.
Following a month-long investigation, detectives discovered that the person posting the pictures was the same person featured in them — the 14-year-old girl. Anyone who was "friends" with the girl through MySpace or knew her full name could have accessed the photos.
The teen was charged with one count of possession of child pornography and one count of distribution of child pornography. She was released into her mother’s custody, Maer said.
The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment.