By TAMAR LEWIN, Published: March 17, 2010
In the first federal appeals court opinion dealing with ‘sexting’ — the transmission of sexually explicit photographs by cellphone — a three-judge panel of the United States Court of Appeals for the Third Circuit ruled Wednesday that parents could block the prosecution of their children on child pornography charges for appearing in photographs found on some classmates’ cellphones.
‘It does not resolve all of the constitutional issues implicated in sexting prosecutions, but it’s a terrific start for civil liberties,’ said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, who represented the parents.
The case, Miller v. Mitchell, began in 2008 when school officials in Tunkhannock, Pa., discovered seminude and nude photographs of some female students — some as young as 12 or 13 when the photographs were taken — on other students’ cellphones. The officials confiscated the phones and turned them over to the Wyoming County District Attorney’s Office.
The district attorney at the time, George Skumanick Jr., said that students possessing ‘inappropriate images of minors’ could be prosecuted for possession or distribution of child pornography, and sent letters to the parents of the students with the phones — and the parents of students who appeared in the photographs — threatening to prosecute any student who did not participate in an after-school ‘education program.’
The syllabus called for the girls to write a report explaining why they were there, what they had done, and why it was wrong.
‘Participation in the program is voluntary,’ the letter said. ‘Please note, however, charges will be filed against those that do not participate or those that do not successfully complete the program.’
Three families whose daughters were in the photographs refused to participate and instead filed suit to block the charges, which they said would amount to retaliation for that refusal. They said the district attorney’s actions interfered with the girls’ constitutional rights to be photographed and to be free from compelled speech — and with the parents’ rights to direct their children’s upbringing.
In March, the district court temporarily barred the district attorney from initiating any criminal charges against the girls. Wednesday’s opinion came in response to his appeal and upholds the injunction but does not resolve the case.
The unanimous ruling of the judges, Thomas L. Ambro, Michael A. Chagares and Walter K. Stapleton, criticized the district attorney’s reliance on the girls’ presence in the photographs as a basis for the potential charges.
‘Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo,’ said the opinion, by Judge Ambro.