As previously noted, a Pennsylvania DA has threatened to bring child porn charges about three teen girls who had provocative pictures of themselves on their cell phones. Their parent's later sued the DA (with the help of the local ACLU) and yesterday, a federal judge issued an order enjoining the DA from bringing child pornography charges against the girls. You can read the order here. The blogosphere is abuzz with the news: WSJ Law Blog, TalkLeft, Sentencing Law & Policy (1, 2), Ars Technica, How Appealing (1, 2, 3), Prawfsblawg (1, 2, 3, 4, 5), Concurring Opinions, Newark Star-Ledger, Reuters, Scranton Times-Tribune, and the Associated Press. From Reuters:
U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.
The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.
"The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said.
The case has attracted national attention and revolves around the growing practice among teens of "sexting," a play on the term texting, in which nude or semi-nude photos are sent on cell phones or posted on the Internet.
The pictures, found last fall by officials of Pennsylvania's Tunkhannock School District, showed two of the girls wearing bras, and another standing topless with a wrapped towel around her waist. No sexual activity was displayed.
Last month Skumanick told the girls and 17 other students that he would charge them with possessing or distributing child pornography, which is a felony, unless they agreed to probation and participated in a "re-education" program.
All but three agreed to his demands, setting the stage for the lawsuit.
Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision.
"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.
I'm a bit astounded at the degree of coverage around the blogosphere about this case. Don't get me wrong - I think the attention is a positive development. However, this isn't the first child pornography prosecution for "sexting" and it won't be the last. I applaud the ACLU for bringing the issue to national attention. Ultimately, though, I continue to believe a long-term solution to this problem will require action by legislatures. They have to change the definition of "child pornography" to either legalize these situations or make them a separate, lesser crime.