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You may remember this story from last March -- an out-of-control rural district attorney in Pennsylvania telling teenage girls accused of posing provocatively (but not nude) in emailed photos that if they didn't attend his re-education classes on "what it means to be a girl," he'd prosecute them for felony child pornography.  

The ACLU of Pennsylvania quickly obtained a TRO blocking such a prosecution, and today, the Third Circuit strongly affirmed that he grievously overstepped his boundaries by threatening such retaliation

Here, Jane Doe objects to the education program’s lessons in why the minors’ actions were wrong, what it means to be a girl in today’s society, and non-traditional societal and job roles. She particularly opposes these value lessons from a District Attorney who has "stated publicly that a teen[]age girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute." Id. at 19. The program’s teachings that the minors’ actions were morally "wrong" and created a victim contradict the beliefs she wishes to instill in her daughter.

We agree that an individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter—the "responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship," -- was interfered with by the District Attorney’s actions. While it may have been constitutionally permissible for the District Attorney to offer this education voluntarily (that is, free of consequences for not attending), he was not free to coerce attendance by threatening prosecution.

According to plaintiffs, the [unconstitutional] compelled speech arises from the program’s requirement that the minors write a homework paper explaining "how [their] actions were wrong." Jane and Nancy Doe do not agree that appearing in the photograph was wrong, and they assert that requiring Nancy Doe to write an essay to that effect "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding that mandatory participation in Pledge of Allegiance violated children’s First Amendment free speech rights). The compulsion here takes the form of the District Attorney’s promise to prosecute Doe if she does not satisfactorily complete the education program.

We agree with the District Court at this preliminary stage that Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell’s counsel described at oral argument, "[w]hat it means to be a girl; sexual self-respect, [and] sexual identity." We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. "[W]hat it means to be a girl in today’s society," while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.

If you like what the ACLU of PA did here, please show your support and become a card-carrying member today -- even if you don't live in PA, your contribution automatically makes you a member of the ACLU nationally.

Originally posted to Adam B on Wed Mar 17, 2010 at 02:56 PM PDT.

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