Third Circuit on sexting

The Third Circuit this week affirmed the preliminary injunction prohibiting a Pennsylvania District Attorney from prosecuting a teen-age girl, in one of the first widely publicized sexting cases (which I wrote about here and here last year). Slate's Dahlia Lithwick weighs in on the Third Circuit decision.

Cell-phone photos of three teen-age girls had been sent around to about 15 boys in the school. The DA* threatened to bring felony child porn charges against all the students (the boys who received the photos and the three girls who took them) unless they agreed to participate in an "education" program. In the program (divided into male and female groups) the girls would "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages," including writing reports about appropriate female behavior and why what they did was wrong. Instead, the three girls sued, although only one of the three still had a live controversy in the court of appeals (the DA had promised not to prosecute the other two).

Some thoughts.

The court avoided what I had called the "lurking" Younger abstention problem. The informal adjustment proceeding into which the DA sought to place the girls had not yet begun, thus was not a pending proceeding (the lawsuit arose from his efforts to initiate those very diversion proceedings, which required consent by the girls and their parents). More importantly, informal adjustment proceedings--which utilize the court's social-service and supervisory resources rather than its formal and coercive powers and allow no opportunity to raise constitutional issues--are not the type of judicial proceedings for which federal courts should abstain. This may be an interesting problem for Fed Courts next year.

On the merits, the court, through very careful framing, tried to avoid several potential problems with the First Amendment claim. First, the case was not about the infringement of the girl's First Amendment liberty to take or send the original sexually explicit photographs of herself. Rather, it became a compelled speech case--the constitutional problem was the prosecutor compelling the girl to participate in the education program, which included having to write an essay discussing why what she did was wrong and what it means to be a girl and how to show "sexual self-respect". The girl thus had a First Amendment liberty to refuse to participate in the program.

Second, the retaliatory prosecution was defined as an as-yet-undefined future threatened prosecution if the girl did not participate in the education program. This is important, because the prosecutor already had threatened prosecution once, at the start of the controversy--a threat that could not be retaliatory, because it was not in response to the protected activity (refusing to engage in compelled speech by participating in the education program). So the constitutional violation was the DA's threat to begin a future retaliatory prosecution if the girl refused to participate in the diversion program and write the compelled essay.

But this framing raises some tricky issues. First, the court had to explain why the prosecutor's actions here (giving a potential defendant the choice of "Enter this diversion program, including acknowledging what you did wrong, or be prosecuted") is any different than any other deal that prosecutors frequently reach with defendants or juveniles involving diversion programs. It generally is not deemed retaliatory if a prosecutor, having made an offer of a diversion program that is rejected, then initiates a prosecution for the underlying activity. Second, the court recognized the strong presumption of regularity behind charging decisions and the limited power of federal courts to second-guess those decisions.

I am not sure I am convinced by the court's answers to these concerns.

1) Implicit in the entire discussion is an assumption that any prosecution on child-porn-related charges would be invalid, although the court simultaneously disavows any position on that question. It insists that any prosecution would be retaliatory because the DA lacks probable cause (at least at this time) to believe that the child porn statute had been violated by the photos at issue. This was partly because there was no evidence that the girl had possessed or distributed (as opposed to simply posing for) the photo. But it also depends on the assumption that taking and sending a photo of yourself cannot constitute child pornography. I share that conclusion as a matter of substantive law, but I think the court needed to be more explicit.

2) Because the diversion program involved compelled speech, this ceased to be an ordinary "submit-to-adjustment-or-be-prosecuted" because the girl had a constitutional right not to participate in the program. Of course, all criminal suspects have constitutional rights to refuse to consent to informal resolution and to go to trial and put the state to its proof. What the court said makes this case different is that the girl had a First Amendment right not to participate in the program because of the compelled-speech component.

3) Most diversion programs require the participant to admit and discuss what he did wrong. But, the court insisted, the required essay here would have been unique because admitting she had done something "wrong" in this case could not have been a discussion of legal wrongs. Rather, it was only a moral or sociological or social wrongs having nothing to do with the criminal or juvenile justice systems. Again, however, this required the implicit conclusion that she could not have violated the child-porn statute on these facts.

4) The court described this as one of the "rare instances" in which a federal court can assess the quantum of evidence underlying a threatened prosecution and find that quantum so lacking as to make the prosecution retaliatory, thus emphasizing the uniqueness of the case (which I suppose is true).

In the end, I am not sure I buy this result or the reasoning. Any prosecution of this girl should fail--under the statute and as a First Amendment matter. But I am not convinced that the diversion program at issue is so unique as to raise an independent compelled-speech problem. And I am not convinced that the mere threat of prosecution (the thing that prosecutors do every day) states an independent First Amendment violation that a federal court can enjoin in a § 1983 action.

 * Now former DA, actually He lost his reelection bid in the fall, something that happens less than 10 % of the time, probably probably because of his unconscionable behavior in this case. Of course, we might wonder why his successor continued to pursue the case to the Court of Appeals.