Miller v Skumanick

3-30-2009 Pennsylvania:

Miller v Skumanick
605 F.Supp.2d 634 (2009)

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.

Background
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).

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The court agrees with the plaintiffs that the public interest would be served by issuing a TRO in this matter as the public interest is on the side of protecting constitutional rights. This factor too supports issuing a TRO.

Conclusion
Upon balancing the TRO factors, we find that each factor weighs in favor of granting the TRO. Accordingly, we will grant the plaintiffs' motion for a temporary restraining order. An appropriate order follows.

ORDER
AND NOW, to wit, this 30th day of March 2009, the plaintiffs' motion for a temporary restraining order (Doc. 2) is hereby GRANTED. The defendant, Wyoming County District Attorney George Skumanick, and his officials, employees, agents and assigns, are hereby ENJOINED from initiating criminal charges against plaintiffs Marissa Miller, Grace Kelly and Nancy Doe for the two photographs at issue. This order shall be effective immediately.

A hearing on plaintiffs' request for a Preliminary Injunction will be held on June 2, 2009. A scheduling order will follow.

Plaintiffs' motion for leave to file the original complaint and proceed under pseudonyms and for a protective order (Doc. 3) is hereby GRANTED.

Plaintiffs' motion to compel the defendant to produce the photographs in question (Doc. 4) is hereby DENIED as moot. The defendant has supplied plaintiffs with the photographs.

Article: 3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography