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Prosecutor Overstepped Bounds in School 'Sexting' Case, Court Rules

A federal appeals court has ruled that a state prosecutor in Pennsylvania likely overstepped constitutional boundaries when he threatened a student with prosecution over alleged "sexting," the texting or Web posting of allegedly sexually explicit or suggestive images.

The decision grew out of a well-publicized incident in the Tunkhannock, Pa., school district in the fall of 2008 in which officials found that a number of male students had been trading sexually suggestive images of female students. Wyoming County District Attorney George Skumanick, who has since lost a re-election bid, announced at a school assembly that male and female students who possessed the images on their cell phones, or appeared in the images, could be prosecuted for child pornography.

Skumanick eventually threatened more than a dozen students that they would be prosecuted if they did not attend an education program in which students would have to write a report on why what they did was wrong and whether they had created "victims." Some parents objected to the prosecutor's actions, and they questioned whether some of the images, which included girls in bathing suits or in bras, were child pornography.

In a March 17 decision, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously upheld an injunction barring the prosecution of one female student who refused to participate in the education program.

The court said there was no evidence about who transmitted the images of the girl, who was pictured in a bra in the image in question, and thus the prosecution threat amounted to retaliation for the girl's asserting her First Amendment right against compelled speech. The court further found that the 14th Amendment due process rights of parents to control the upbringing of their children was likely violated by the prosecutor.

"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 3rd Circuit said in Miller v. Mitchell. While schools have a "secondary responsibility" under federal and state law in the upbringing of children, the court said, a district attorney has no such role.

The court did not rule on whether any of the images in question constituted child pornography.

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