Many of you participated in my diary last week on the ACLU of PA's efforts to prevent the Wyoming County district attorney from using baseless charges to threaten teenage girls into "reeducation camps" for non-obscene photos they had taken of themselves and sent to friends.
Great news: in a 29-page order yesterday (PDF), The Hon. James Munley of the United States District Court for the Middle District of Pennsylvania entered a temporary restraining order which states, in its most pertinent part:
The defendant, Wyoming County District Attorney George Skumanick, and his officials, employees, agents and assigns, are hereby ENJOINED from initiating criminal charges against plaintiffs Marissa Miller, Grace Kelly and Nancy Doe for the two photographs at issue. This order shall be effective immediately.
The ruling is based on the traditional standards for granting a TRO -- the judge determined that plaintiffs had a reasonable likelihood of success on the merits of their claims, that they faced irreparable harm should the TRO not be granted while relatively little harm would visit the defendants, and that granting the TRO was in the public interest.
As to that first point -- probability to success on the merits -- I'll reproduce the Court's opinion here, stripping out the legal and record citations for clarity:
Plaintiffs insist that retaliation exists here because (1) minor plaintiffs have a constitutional right to avoid the courses and their parents have a constitutional right to direct their education; (2) prosecution of the girls would be retaliation (an adverse action); and (3) because the girls’ pictures were not illegal, the only reason to prosecute them would be in retaliation for exercising their constitutional right not to participate in the program. The court will examine each of the three elements of retaliation claim to determine whether plaintiffs have established a reasonable likelihood of success on the merits.
i. Constitutionally Protected Activity
The parents in this case have a Fourteenth Amendment right substantive due process right "to be free from state interference with family relations." "Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect." Indeed, "the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by" the Supreme Court. As early as 1923, the Supreme Court found that "the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’" Id.
Plaintiff MaryJo Miller testified at the TRO hearing that she did not want her child to attend the program. She objected to a requirement that her daughter write an essay describing "what she did wrong and how it affected the victim in the case." From Ms. Miller’s perspective, her daughter "was the victim" of whoever sent out the photographs. Since her daughter had done "nothing wrong," she should not have to write such an essay. In their complaint, all of the parents allege that this program violates this right to direct their children’s education.
The minors contend that they have asserted their right to be free from compelled speech. "‘Since all speech inherently involves choices of what to say and what to leave unsaid,’ one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’" Thus, "[t]he Supreme Court has long recognized that, in addition to restricting suppression of speech, ‘the First Amendment may prevent the government from . . . compelling individuals to express certain views.’" This view exists because "‘[a]t the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration and adherence.’" Among the categories of compelled speech found impermissible by the supreme court "is government action that forces a private speaker to propagate a particular message chosen by the government." Id.
Here, the minor plaintiffs contend that they will be compelled to write an essay that explains what they did wrong. Because they contend that they in no way violated the law, they further contend that being compelled to describe their behavior as wrong on threat of a felony conviction forces them to express a belief they do not hold and thus violates their right to be free of compelled speech. We find that both the parents and the children have asserted constitutionally protected activity sufficient to meet the standard that they are reasonably likely to succeed on the merits on this issue.
ii. Government Retaliation
The Third Circuit Court of Appeals has held that an adverse action by the government sufficient to support a retaliation claim has occurred if "‘the alleged retaliatory conduct was sufficient ‘to deter a person of ordinary firmness’ from exercising his First Amendment Rights.’" "[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." The court finds here plaintiffs’ claim that the threat of a felony prosecution would deter an ordinary person from exercising her constitutional rights meets the "reasonable likelihood of success on the merits" standard.
iii. The Protected Activity Caused the Retaliation
In support of this prong of a retaliation claim, plaintiffs argue that the images in question here could not possibly support a charge of child pornography under Pennsylvania law. As such, the defendant’s threat to charge the minor plaintiffs with a felony is not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program. The fact that the defendant continues to promise prosecution if the girls refuse to participate indicates that the charges are retaliation for their refusal to engage in compelled speech. In the case of the parents, this threat is an attempt to compel them to abandon their Fourteenth Amendment right to control their child’s upbringing.
Plaintiffs assert that the defendant has no basis in Pennsylvania law for prosecuting the girls. Defendant has asserted that the photographs are "provocative," but "provocative photos," plaintiffs contend, are not illegal under Pennsylvania law even when they involve minors. The statute in question, 18 PENN. STAT. § 6312, prohibits the distribution of images depicting a prohibited sexual act, and defines "prohibited sexual act" to mean "sexual intercourse . . . masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." 18 PENN. STAT. § 6312(a). The plaintiff contends that the images here do not even remotely meet this definition.
Plaintiffs also argue that the statute does not apply to the minors here, who were the subjects of the photographs. Defendant Skumanick is threatening to prosecute the victims of the crime, not the perptrators according to the plaintiffs.
The court here offers no final conclusion on the merits of plaintiffs’ position. Testimony and evidence at the TRO hearing, as well as allegations in the verified complaint, however, indicate a reasonable likelihood that the plaintiffs could prevail on this aspect. While the court emphasizes that its view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one. Thus, a reasonable likelihood exists that plaintiffs will succeed on the merits, and this factor weighs in favor of granting a TRO.
A hearing on plaitniff's request for a preliminary injunction is scheduled for June 2.