Federal district judge enjoins controversial state sexting prosecution

March 31, 2009

As detailed in this Reuters article, a federal district judge “on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.” Thanks to How Appealing, you can read the judge’s full opinion at this link, and here are more details from the Reuters article:

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….

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.

But Skumanick said it could encourage potential defendants to use the federal court system to evade state charges. “My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system.” Skumanick said. When asked if he would appeal, he said was studying the opinion.

Based on the pretty remarkable factual allegations in this “sexting” case, I am neither surprised nor too troubled that the local DA was given a federal court smack-down in this case. That said, I suspect that lots of state prosecutors ought to share the local DA’s concern that this ruling in Miller v. Skumanick could (and should?) embolden any and all potential state criminal defendants to run to federal court to seek to preclude any and all constitutionally questionable state prosecutions.

Indeed, I would suspect that anti-death-penalty litigators might want to take a page from the playbook of the ACLU of Pennsylvania. Based on the theories sustained in Miller v. Skumanick, a state murder defendant being threatened by a local prosecutor with a capital indictment as part of plea negotiations might now consider running to federal court to assert various constitutional claims in order to try to preclude the local prosecutor from pursuing a state capital prosecution.

Similarly, perhaps Second Amendment advocates can and should be able to use the ruling in Miller v. Skumanick to try to thwart any efforts by aggressive state prosecutors to pursue any kind of constitutionally questionable gun prosecution. In fact, with Plaxico Burress having a hard time getting a favorable plea deal (basics here), his lawyers perhaps out to seriously consider heading over to the federal courts in Foley Square to assert Second Amendment claims in an effort to force New York state prosecutors to back off.

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