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Friday, March 27, 2009

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

Posted by Howard Wasserman on March 27, 2009 at 07:46 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


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Thanks, Howard. Great fed courts final exam problem!

Posted by: Vladimir | Mar 27, 2009 6:22:13 PM

Thanks for posting info about this case. I'm glad to see a push back against prosecutors coming down hard on the kids for doing what kids do. Was just reading today an article about another one of these situations.
link to story on yahoo news

Posted by: jjray | Mar 27, 2009 1:22:35 PM

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