As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.
The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.
"I don't know of anything that says a district attorney's office is allowed to, in effect, play the role of teacher," Judge Thomas L. Ambro said.
But attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., argued that Skumanick was right to take the cases seriously when school officials informed him of a rash of sexting incidents, and that each of the students had the option to refuse the class and "face the music" in a juvenile court proceeding.
Skumanick, who was seeking his sixth term as Wyoming County DA, lost to Tunkhannock attorney Jeff Mitchell, the Democratic candidate.
The American Civil Liberties Union of Pennsylvania filed the suit, Miller v. Skumanick, on behalf of three girls who refused to take the class.
In March 2009, U.S. District Judge James M. Munley of the Middle District of Pennsylvania sided with the ACLU and issued an injunction that blocked Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected speech under the First Amendment.
In the appellate argument Friday, Donohue argued that Munley's injunction was an extraordinary instance of federal court interference in an ongoing state court criminal case.
But early on, Donohue was fielding a barrage of aggressive questions. Judge Walter K. Stapleton focused on Munley's finding that the prosecutor lacked probable cause to prosecute any of the girls because of the tame nature of the photos.
Donohue said the prosecutors have now agreed that they would never prosecute two of the girls because the images showed them in bras. But the third girl, who was topless in two images, could be prosecuted, he said.
Stapleton suggested that even the topless images could never amount to probable cause for a child pornography charge.
"If you had probable cause here, you'd have a different case, but all you've got is a picture of somebody partially naked and two years later it turns up on somebody's cell phone at school," Stapleton said.
Donohue said the school's investigation showed that the plaintiff and 20 other girls had transmitted such images to their classmates, and that "the boys, as they are wont to do, were trading the pictures among themselves."
But Ambro focused on the constitutional rights in the case and asked if Skumanick's education program -- delivered with the threat of a prosecution -- had intruded on the rights of the girls' parents or amounted to improper "compelled" speech by the girls who would have been forced to write an essay admitting they were wrong to engage in sexting.
Donohue insisted that all such "informal adjustments" that avoid prosecutions include similar confessional requirements.
But Judge Michael A. Chagares homed in on the segment of the class in which the girls were to be taught "what it means to be a girl in today's society."
Donohue insisted that the class had a six-page curriculum that mostly focused on avoiding sexual predators.
"Naked pictures of children, disbursed on the Internet, draws predators the same way as a swamp draws mosquitoes," Donohue said.
Ambro wasn't satisfied and asked: "Should we allow the state to force children, by threatening them with prosecution, to attend education programs expounding a particular government official's views of what it means to be a girl in today's society?"
Donohue insisted that the program was a proper response to a rash of incidents in which girls had transmitted nude photos of themselves for no other purpose than sexual gratification.
"Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves," Donohue said.
"If that's your goal -- to protect them -- then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?" Ambro asked. ACLU legal director Witold Walczak told the judges "what we have here is a district attorney's office that has a fundamental misunderstanding of child pornography laws."
But Walczak, too, was peppered with some tough questions as the judges pondered whether the ACLU's approach, and Munley's injunction, were legally sound.
Walczak urged the judges to focus, as Munley had, on the nature of the images.
"You don't have pubic area much less genitalia exposed here," Walczak said. "We've been mystified as to how anyone could look at these two photos and say these are second-degree felonies, which can be punished up to 10 years."
Sexting "is a vague term," Walczak said, that "covers everything from the lovely to the laughable to the lewd and the lascivious."
But when Ambro asked if the decision to prosecute should be left to the district attorney, Walczak insisted it should not because prosecutors have no right to threaten charges where there is no probable cause and where the images are constitutionally protected.
Chagares said the court might be inclined to agree with Walczak about the education program, but asked: "Should we be serving as a screening mechanism for sexting cases -- or any other kind of cases?"
Walczak said he believed the federal courts "should stand as a bar to any state official who is imminently violating or threatening to violate somebody's constitutional rights -- and that's what Judge Munley did in this case."