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DA Can’t Charge Teens|for ‘Sexting,’ Court Rules

(CN) - A district attorney in Pennsylvania can't threaten to file criminal child pornography charges against teen girls who posed semi-nude in cell phone pictures, the 3rd Circuit ruled. The court upheld an order barring prosecution, but sidestepped the issue of whether "sexting" is protected speech.

The mothers of three girls suspected of "sexting" -- sending sexually suggestive text messages or images -- said George Skumanick Jr., then district attorney of Wyoming County, Pa., threatened to prosecute their daughters unless they attended an "education program."

Skumanick issued the ultimatum after photos of semi-nude and nude teen girls, some as young as 12 or 13, were discovered on the cell phones of several students in the Tunkhannock, Pa., School District.

He told reporters and students at a high school assembly that students who possessed "inappropriate images of minors" could be prosecuted under state law for possession or distribution of child pornography.

A few months later, he sent a letter to the parents of 16 to 20 students who either had the images on their cell phones or appeared in the photos, threatening prosecution unless they completed a six- to nine-month education program.

One mother took issue with the threat, claiming the photograph of her daughter and a friend merely showed them being "goof balls." The girls were photographed from the waist up wearing white bras, as one girl talked on the phone and the other flashed the peace sign, the ruling states.

The mother pointed out that the girls were not naked, but Skumanick insisted the image constituted child pornography because the girls were posed "provocatively."

The girls' mothers and the mother of a third girl featured in a different photo sued Skumanick in federal court, seeking an order barring him from prosecuting if their daughters refused to attend the education program.

The district court granted their request last March, and the district attorney appealed. (Skumanick was defeated in the November 2009 election by Jeff Mitchell, who took office in January.)

The mothers said the threat violated their daughters' right to be free from compelled speech, specifically the program's required essay explaining how their actions were wrong and what it means to be a girl in today's society. They also claimed that Skumanick interfered with their parenting rights in violation of the 14th Amendment.

While the appeal was pending, the district attorney said he wouldn't file criminal charges against the two girls in the bra photo.

The three-judge panel in Philadelphia said the third girl, Nancy Doe and her mother "have shown a likelihood of success on their claims that any prosecution would not be based on probable cause the Doe committed a crime, but instead in retaliation for Doe's exercise of her constitutional rights not to attend the education program."

"Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo," Judge Thomas Ambro wrote for the panel.

"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."

The ruling did not address whether minors have a First Amendment right to send sexually suggestive messages or photos.

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