The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is plaintiffs' motion for a temporary restraining order (TRO). Having been briefed and a hearing having been held, the matter is ripe for disposition.
At issue in this case is the practice of "sexting," which has become popular among teenagers in recent years. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 7). According to the plaintiffs, this is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." (Id.). Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. (Id. at ¶ 8). That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. (Id. ¶ 9). This practice is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it. (Id. ¶ 10).
Images and Threatened Prosecutions
In October 2008, Tunkhannock, Pennsylvania School District officials confiscated several students' cell phones, examined them and discovered photographs of "scantily clad, semi-nude and nude teenage girls." (Id. at ¶ 12). Many of these girls were enrolled in the district. (Id.). The School District reported that male students had been trading these images over their cell phones. (Id. at ¶ 13).
The School District turned the phones over to Defendant Skumanick, the District Attorney of Wyoming County, Pennsylvania. (Id.at ¶ 13). Skumanick began a criminal investigation. (Id.). In November 2008, Skumanick stated publically to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, 18 PENN.STAT. § 6312, or criminal use of a communication facility, 18 PENN. STAT. § 7512. (Id. at ¶ 15).
Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. (Id. at ¶ 16). Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania's Registration of Sexual Offenders Act ("Meghan's Law), 42 P.S. ¶ 9791, for at least ten years and have their names and pictures displayed on the state's sex-offender website. (Id. at ¶ 17).
On February 5, 2009, Skumanick sent letters to the parents of approximately twenty Tunkhannock students, including the adult plaintiffs in this case. (Id. at ¶ 19). Skumanick sent this letter to the students on whose cell phones the pictures were stored and to the girls shown in the photos. (Id. at ¶). According to the plaintiffs, he did not send the letter to those who had disseminated the images. (Id.).
The letter informed the parents that their child had been "identified in a police investigation involving the possession and/or dissemination of child pornography." (Id. at ¶ 20a). The letter also promised that the charges would be dropped if the child successfully completed a six- to nine-month program focused on education and counseling. (Id. at ¶ 20b). The children and parents were invited to a meeting on February 12, 2009 to discuss the issue. (Id. at ¶ 20c). The letter warned that "charges will be filed against those that do not participate or those that do not successfully complete the program." (Id. at ¶ 20d).
Skumanick held the meeting on February 12, 2009 at the Wyoming County Courthouse. (Id. at ¶ 26). At that meeting, Skumanick reiterated his threat to prosecute unless the children submitted to probation, paid a $100 program fee and completed the program successfully. (Id. at ¶ 27). When asked by a parent at the meeting why his daughter--who had been depicted in a photograph wearing a bathing suit--could be charged with child pornography, Skumanick replied that the girl was posed "provocatively," which made her subject to the child pornography charge. (Id. at ¶ 29). When the father of Marissa Miller asked Skumanick who got to decide what "provocative" meant, the District Attorney replied that he refused to argue the question and reminded the crowd that he could charge all the minors that night. (Id. at ¶ 30). Instead, Skumanick asserted, he had offered them a plea deal. (Id.). He told Mr. Miller that "these are the rules. If you don't like them, too bad." (Id.).
The proposed program--which the plaintiffs call a "re-education program"--is divided between girls' and boys' programs.*fn1 (Id. ¶ 32). The program is designed to teach the girls to "gain an understanding of how their actions were wrong," "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages," and "identify non-traditional societal and job roles." (Id.). Included in the "homework" for the program is an assignment including "[w]hat you did" and "[w]hy it was wrong." (See Course Outline (Exh. 2 to Complt.) (Doc. 1-5)). The program was initially purported to last six to nine months, but was eventually reduced to two hours per week over five weeks. (Complt. at ¶ 31).
At the February 12 meeting, Skumanick asked all those present to sign an agreement assigning the minors to probation and to participation in the program. (Id. at ¶ 33). Only one parent agreed to sign the form for her child. (Id.). Skumanick gave the parents forty-eight hours to agree to the offer or the minors would be charged. (Id. at ¶ 34). After parents objected, Skumanick extended the time frame for agreeing to his program to a week. (Id.). Skumanick told parents he would show them the photographs in question at the end of the meeting. (Id. at ¶ 35).
All of the adult plaintiffs here are parents of daughters whose photographs appeared on the confiscated cell phones. They all reside in the Tunkhannock School District, and their children attend the Tunkahannock Schools.
Plaintiff MaryJo Miller and her ex-husband met with Skumanick at his invitation on February 10, 2009. (Id. at ¶ 21). Skumanick showed them the photograph that involved their daughter Marissa. (Id.). The photograph in question was approximately two years old, and showed Plaintiffs Marissa Miller and Grace Kelly from the waist up, each wearing a white, opaque bra. (Id. at ¶ 22). Marissa was speaking on the phone and Grace using her hand to make the peace sign. (Id.). The girls were thirteen years old at the time the picture was taken. (Id.). Despite Ms. Miller's protests to the contrary, Skumanick claimed that this image met the definition of child pornography because the girls were posed "provocatively." (Id. at ¶ 23). The Millers objected to Skumanick's legal claims, insisting that their daughter had a right to a jury trial if charged. (Id. at ¶ 24). Skumanick informed them that no jury trials exists in Juvenile Court. (Id.). He also promised to prosecute both girls on felony child-pornography charges if they did not agree to his conditions. (Id. at ¶ 25). After the February 12 meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy.*fn2 (Id. at ¶ 36). The photograph, more than a year old, showed Nancy Doe wrapped in a white, opaque towel. (Id.). The towel was wrapped around her body, just below her breasts. (Id.). It looked as if she had just emerged from the shower. (Id.).
The plaintiffs emphasize that neither of these two photographs depicted any sexual activity. (Id. at ¶ 37). Neither showed the girls' genitalia or pubic area. (Id. at ¶ 38). Skumanick said the pictures were among those on the confiscated cell phones, but he would not divulge who owned the phones. (Id. at ¶ 39). At the time that plaintiffs filed their complaint, Skumanick had refused repeated requests to provide plaintiffs' counsel with copies of the pictures. (Id. at ¶ 40). He asserted that he could be charged with a child pornography crime for sharing a copy. (Id.). The minors insist that they did not disseminate the photographs to anyone else, but that another person sent those pictures "to a large group of people" without their permission. (Id. at ¶ 50).
Potential Charges Against the Plaintiffs
According to the complaint, Skumanick's only basis for the threatened prosecution of the three girls is that they allowed themselves to be photographed. (Id. at ¶ 41). In early March, he asserted to plaintiffs' counsel that the three were accomplices in the production of child pornography. (Id.). During the hearing on the TRO conducted by this court on March 26, 2009, the defendant reiterated that he intends to charge the girls if they refuse to participate in the education program. (Transcript of Temporary Restraining Order Hearing, March 26, 2009 (Doc. 13) (hereinafter "T") at 44).
On February 25, 2009, plaintiffs received a letter dated February 23, 2009. (Compt. at ¶ 42). This letter advised parents that they were scheduled for a February 28, 2009 appointment at the Wyoming County Courthouse to "finalize the paperwork for the informal adjustment." (Id. at ¶ 43). Plaintiffs contend that an "informal adjustment" amounts to a guilty plea in the juvenile context, since it allows for probation before judgment. (Id. at ¶ 43). Parents who attended the February 28, 2009 meeting informed plaintiffs that agreeing to the informal adjustment would subject plaintiffs to the "re-education" course, six months of probation and drug testing during those six months. (Id. at ¶ 44). All of the parents and minors except the three here involved agreed to the conditions. (Id. at ¶ 45). Defendant has temporarily deferred prosecution to the three minors here to allow plaintiffs' counsel to research ...