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Court bars charges against teen who posed semi-nude

Sanity enters 'sexting' crusade

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A federal appeals court rebuked a Pennsylvania district attorney who threatened to file felony child pornography charges against teens who were photographed semi-nude unless they attended an "education program."

In a unanimous decision issued Wednesday by the appeals court in Philadelphia, a three-judge panel said the threat amounted to a "Hobson's Choice" that would retaliate against one of the girls and her family for exercising their constitutional right to free speech. A rare dose of government-issued sanity in the prosecutorial crusade against teenage "sexting", the ruling upheld a lower-court order issued last year in the case.

The case stems from "inappropriate images of minors" found by officials at Pennsylvania's Tunkhannock School District, that included, among other things, a girl posing in her bathing suit. In late 2008, Wyoming County District Attorney George Skumanick told an assembly of about 20 students and their parents he would bring felony child pornography charges against them unless they completed a six- to nine-month program.

For female offenders, that meant attending classes designed to help the participants "gain an understanding of what it means to be a girl in today's society," and require them to write a report on what the students did and "why it was wrong".

When the parent of the girl who posed in her bathing suit publicly complained, Skumanick responded that she was posing "provocatively" and concluded by saying: "These are the rules. If you don't like them, too bad." (Skumanick is no longer District Attorney.)

The panel from the US Court of Appeals for the Third Circuit said the education program requirement amounted to compelled speech, in violation of the Constitution's First Amendment. As such, Skumanick's threat to prosecute was retaliation. The judges went on to uphold the lower-court's order barring the filing of child pornography charges against one of the girls caught up in the dragnet, who was identified as only as Nancy Doe.

"In sum, absent an injunction, the Does would have to choose either to assert their constitutional rights and face prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution," they wrote. "On the facts before us, this Hobson's Choice is unconstitutional."

The offending image of Nancy Doe showed the teen in a "white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower," according to the decision.

While the ruling is a breath of fresh air, its applicability to other sexting cases sweeping the country is questionable. Had Skumanick not offered the option of the education program compelling the writing of papers, there's no reason to believe the judges would have reached the same conclusion.

Still, the decision appears to be the first time an appeals court has weighed in on the prosecution of teen "sexting," a practice that's growing increasingly common in an age where kids have the unprecedented ability to take pictures of themselves and immediately zap them to world+dog.

In a world populated by Skumanick and other overzealous prosecutors, a little sanity is a good thing. ®

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