Prosecutors told to use common sense in handing 'sexting' cases

Published: March 19, 2010

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In a powerful ruling resulting from former Wyoming County District Attorney George Skumanick Jr.'s attempt to vastly exceed his legitimate authority, the U.S. Third Circuit Court of Appeals has upheld vital constitutional principles endorsing free speech and prohibiting government interference in personal matters.

The ruling is an instruction for prosecutors to uphold the law rather than to act when their own moral sensibilities are offended.

Three appellate judges - Thomas Ambro, Michael Chagares and Walter Stapleton - upheld a decision by U.S. District Judge James M. Munley of Scranton. He had issued an injunction precluding Skumanick from bringing child pornography charges against three teenaged girls.

Skumanick had threatened to arrest the teenagers relative to "sexting," the ill-advised practice among some teens of texting nude or semi-nude photos of themselves, unless they participated in an anti-sexting class he had devised.

The class included instruction on why "sexting" is morally wrong and the role of girls in society. Participants were required to write an essay on why what they did was morally wrong.

That, the court correctly concluded, is not the district attorney's job.

". . . An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," the court said.

Skumanick's threat of retaliation, with criminal charges, against children who did not participate in his program, the court concluded, interfered with their parents' 14th Amendment "due process right to raise their children without undue state interference."

Schools, the appeals panel said, have a "secondary responsibility" relative to children.

"We can say with assuredness," the three judges said, "that the district attorney is not imbued with that same 'secondary responsibility.' ... The district attorney is not a public education official, but a public law enforcement official."

The teenagers' First Amendment rights were violated by the Skumanick program, the court found, because participants were compelled to state the government's position in an essay, regardless of whether they agreed with it.

"Sexting" is dangerous and its has potentially negative consequences for those who do it. It is not, however, a legitimate cause for prosecutors to run roughshod over the rights of families.

The ruling should be a cause for prosecutors to use common sense in "sexting" cases.

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