Students Take On Prosecutor in ‘Sexting’ Case

SCRANTON, Pa. (CN) - Three teenage girls and their mothers say the district attorney of Wyoming County, Pa., violated their free-speech rights by threatening to prosecute the girls for child pornography for their roles in creating and sending two sexually suggestive photographs via cell phones, a practice known as "sexting."

In October 2008, the Tunkhannock School District confiscated several students' cell phones, including the plaintiffs', and discovered photographs of scantily clad, semi-nude and nude teenage girls.

District Attorney George Skumanik Jr. threatened to prosecute unless parents placed their daughters on probation and sent them to a five-week, 10-hour re-education program where the girls "must discuss why their conduct was wrong and what it means to be a girl," according to the lawsuit in Federal Court.

Three students and their mother challenged Skumanick's authority to do so on the basis that the photos aren't illegal.

"One photo shows Marissa (Miller) and Grace (Kelly) from the waist up, lying side by side in their bras, with one talking on the phone and the other making a peace sign," the lawsuit claims. "The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts."

The plaintiffs say the photos are protected speech, and that Skumanik has no authority to deem them "provocative."

"Since there is no basis to prosecute the girls for posing in photographs that plainly are not child pornography," the lawsuit argues, "Skumanik's threat ... must be considered retaliation against the plaintiffs for asserting their constitutional rights - the parents' right to direct their children's upbringing and the girls' right both to freedom of expression and against compelled speech - in refusing Skumanick's demands."

The plaintiffs seek a court declaration that the photos are safeguarded by the U.S. Constitution and do not violate any child pornography laws.

They are represented by Seth Kreimer with the American Civil Liberties Foundation.

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