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Sunday, March 29, 2009

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Posted by Howard Wasserman on March 29, 2009 at 07:59 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

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Comments

There is pretty much nothing a prosecutor can do in the criminal justice system (short of actually making up evidence), certainly involving legal argument and negotiation with defense counsel, that a prosecutor ceases to act as a prosecutor. This is why the plaintiffs did not seek damages--they knew they would run smack into prosecutorial immunity.

The chilling is tangible--which is what gives these plaintiffs standing and makes their claims ripe. But their free-speech rights have not been violated merely because they are chilled by the threat; it takes (I believe) an actual legal restriction that, if imposed, would sanction them for their speech.

Posted by: Howard Wasserman | Mar 29, 2009 7:45:44 PM

I am convinced that argument is entirely wrong (if not frivolous) as a statutory and constitutional matter, but it still is a legal argument about what he might do as prosecutor.

My argument is that some legal arguments are so bad that making them falls outside the job description of a prosecutor. A prosecutor making such an argument is not acting as a prosecutor, but rather is simply a private citizen abusing the seal of the office.

Either way, there must be some more tangible harm or intrusion on individual expression for an anticipatory First Amendment claim to go anywhere.

I don't see why the chilling of sending text messages or photos on a cell phone is intangible. Those text messages and photos cost money to send; technically the speech is paid for, not free. Also, Laird v. Tatum is about government surveillance of individuals, not about threatening someone with the imposition of legal costs and the hassle of being dragged through the legal system. Hiring defense counsel to ward off this prosecutor is a real harm; attorneys charge fees.

Posted by: I'll take a stab at it | Mar 29, 2009 5:55:25 PM

I do not see why his threats are "totally divorced from the law"? He has made a legal argument that he might put into play by bringing charges under the law he is empowered to enforce; I am convinced that argument is entirely wrong (if not frivolous) as a statutory and constitutional matter, but it still is a legal argument about what he might do as prosecutor. But the harm is only if he does that, not what he *might* do.

Chilling effect, without more, does not violate the First Amendment; I cannot recall a case in which a law that merely "chilled" expression made a stand-alone violation. Under Laird v. Tatum, chilling effect alone may not be enough to establish standing. Either way, there must be some more tangible harm or intrusion on individual expression for an anticipatory First Amendment claim to go anywhere.

Posted by: Howard Wasserman | Mar 29, 2009 5:39:12 PM

Because the threats are totally divorced from the law (and so outside of the prosecutor's discretion), the threats are an ultra vires act that constitute an independent violation (a Bivens claim). Because the ultra vires threats chill free speech, the threats themselves violate the First Amendment whether punishment is levied or not. The prosecutor simply has no authority as an individual acting outside of his duty as a law enforcement officer to chill free speech with threats using the apparent authority of his office.

Posted by: I'll take a stab at it | Mar 29, 2009 2:08:23 PM

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