In one of the first civil rights suits to focus on the growing practice of "sexting," lawyers for the ACLU of Pennsylvania will be asking a federal judge Thursday to protect three teenage girls from the threat of criminal charges for using their cell phones to take and send semi-nude photographs of themselves.
The suit accuses Wyoming County District Attorney George Skumanick Jr. of violating the three girls' First Amendment rights and seeks a court declaration that the photos "are not child pornography or any other crime."
"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," said Witold Walczak, the legal director of the ACLU of Pennsylvania. "These are just kids being irresponsible and careless; they are not criminals."
Skumanick did not immediately return a phone call seeking comment.
U.S. District Judge James M. Munley will be holding a hearing at 1:30 p.m. today in Scranton on the ACLU's motion for an immediate injunction.
The suit alleges that Skumanick has threatened to prosecute the three girls on child pornography charges for their roles in the creation of two digital photographs unless their parents agree to place the girls on probation and send them to a five-week, 10-hour "re-education" program in which the girls must discuss why their conduct was wrong and "what it means to be a girl."
According to the suit, one of the photos shows plaintiffs Marissa Miller and Grace Kelly 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 plaintiff Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts.
Walczak said neither of the two photographs depicts any sexual activity or display of pubic area, and therefore cannot be deemed illegal under Pennsylvania's crimes code.
But Skumanick "nevertheless persists in threatening to prosecute the girls," Walczak said, "because he has deemed the photos 'provocative.'" Although prosecutors have the right to exercise their prosecutorial discretion, the suit alleges that Skumanick has crossed the line by using his power to retaliate.
"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," the suit says.
In his brief demanding an injunction, Walczak argues that Skumanick's misguided views on pornography laws will have an illegal chilling effect unless reined in by the courts.
"Skumanick's expansive view of what constitutes child pornography, which is essentially any image that he finds personally offensive regardless of its actual illegality -- and his demonstrated willingness to wield his prosecutorial power to punish the subjects of such photos -- will have a chilling effect on the free-expression rights of all teenage girls in Wyoming County to pose for photographs on the beach in their bikinis and the free-expression rights of those girls' parents to take photographs of their children during family vacations or even at the local pool," Walczak argues.
As a result, Walczak contends, "unless the threatened prosecution is enjoined and declared unconstitutional, plaintiffs' free-expression rights will be irreparably harmed."
According to the suit, the two photos were among several discovered by Tunkhannock School District officials on students' cell phones.
The photos came to light in October 2008 when school district officials confiscated several students' cell phones and discovered photographs of scantily clad, semi-nude and nude teenage girls, many of whom were enrolled in the district. The school then turned the photos over to Skumanick.
In February 2009, the suit says, Skumanick sent a letter to the parents of about 20 students threatening them with criminal felony charges if they did not agree to be placed on probation and participate in a counseling program Skumanick had devised.
According to the suit, an outline for the five-week course says the program would help the girls to understand why their conduct was wrong as well as "what it means to be a girl in today's society."
'A GROWING CONCERN'
Michael Piecuch, the executive director of the Pennsylvania District Attorneys Association, refused to comment on the specific allegations in the Wyoming County case, but said that sexting is "a growing concern" for prosecutors.
Protecting children from sexual exploitation is a primary concern for prosecutors everywhere, Piecuch said, "and sometimes that means protecting kids from themselves."
Piecuch (pronounced Pea-YET-sook) said "existing laws don't always predict the use of emerging technologies," but that prosecutors "have to work with what they've got."
A "passionate" prosecutor faced with such a problem, he said, will sometimes come up with a "creative" solution. Piecuch said the PDAA will be closely monitoring the Wyoming County case and keeping its members aware of developments.
Drexel University law professor Chapin Cimino said she was surprised by the ACLU's decision to target a prosecutor on the basis of his speech -- the alleged threat to prosecute -- but also said she would consider any criminal charges against the girls to be "silly."
But Cimino also said the case may highlight a gap in the law and that the growing problem of sexting may force legislators to craft new laws that clearly define the rights and wrongs in sending images by phone.
"The harm comes in the republication," Cimino said. Most prosecutors, she said, would likely decline to prosecute the person who, in a typical case, takes and sends the original self-portrait, and likewise would decline to prosecute the intended recipients.
But Cimino said existing laws may already criminalize the act of resending the image to additional recipients, and that new laws could be drafted to make that prohibition more clear.