The case is Miller v. Mitchell, just handed down today, and it’s important but complicated. Please bear with me. [UPDATE: For more on this case, and how it could impose stringent constitutional limits on anger management classes, anti-drug/alcohol-abuse classes, or even traffic school offered as alternatives to prosecution, see this follow-up post.]
Here are the facts: A bunch of high school students were sending around “photographs of semi-nude and nude teenage girls,” apparently generally their classmates. The prosecutor “sent a letter to the parents of between 16 and 20 students — students on whose cell phones the pictures were stored and students appearing in the photographs — threatening to bring charges against those who did not participate in what has been referred to as an ‘education program.’”
The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.
What’s more, it appears that the particular girls whose parents were suing were probably not guilty of the crimes that the prosecutor threatened to prosecute them for (basically, participation in the distribution of child pornography). First,
Before the meeting, [District Attorney George Skumanick] had shown plaintiff MaryJo Miller and her ex-husband the two-year-old photograph of their daughter, in which Marissa Miller and Grace Kelly, 12 or 13-years-old at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Ms. Miller’s protests that her daughter and friend were merely being “goof balls” and were not naked, Skumanick claimed the image constituted child pornography because they were posed “provocatively.” …After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.
I don’t think the prosecutor’s claim is right. First, the first two displays are not child pornography, since they don’t portray sexual conduct, lewd exhibition of the genitals, or “nudity … depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction”; the matter is less clear as to the third, since it at least shows naked breasts — I can’t tell for sure without knowing more about the circumstances, and about Pennsylvania law on this. [UPDATE: I at first neglected to distinguish the three displays, but I've revised the preceding sentence to do so.] And, second, as the court stresses later, there was no evidence that the particular children on whose behalf the lawsuit was brought actually possessed the photos, which the court suggests is required for prosecution. (The court doesn’t discuss the possibility that the children might have been accomplices to the making of the photos, presumably because under 18 Pa. Consol. Stats. Ann. § 306(f) “a person is not an accomplice in an offense committed by another person if … he is a victim of that offense.”)
So the prosecutor (1) threatened to prosecute plaintiff’s daughter (2) even though it turns out he didn’t have probable cause for a prosecution (3) unless the daughter went through the “education program.” All three elements, it turns out, seem to be crucial to the decision.
Here’s what the court held:
(1) Requiring the education program violated the parents’ parental rights. “Jane Doe objects to the education program’s lessons in why the minors’ actions were wrong, what it means to be a girl in today’s society, and non-traditional societal and job roles. She particularly opposes these value lessons from a District Attorney who has ‘stated publicly that a teen[]age girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute.’ The program’s teachings that the minors’ actions were morally ‘wrong’ and created a victim contradict the beliefs she wishes to instill in her daughter.” “[A]n individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter — the ‘responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship’ — was interfered with by the District Attorney’s actions.”
The court distinguished education provided by a school, partly because the prosecutor “is not a public education official, but a public law enforcement official,” and partly because parents may choose to send a child to private school. The court did not discuss whether similar programs could be made requirement curriculum for all private schools.
(2) “Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell’s counsel described at oral argument, ‘[w]hat it means to be a girl; sexual self-respect, [and] sexual identity.’ We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. ‘[W]hat it means to be a girl in today’s society,’ while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.”
(3) Threatening to prosecute the children for refusing to attend the education program interfered with the parents’ parental rights and the children’s rights to be free of compelled speech, because it threatened governmental retaliation for the exercise of constitutional rights.
(4) But this apparently is true only if the prosecution also lacked probable cause, given the Court’s ruling in Hartman v. Moore (2006). If the prosecutor had probable cause to prosecute, he could have done so if he was also motivated by the girls’ refusal to participate in the education program (and apparently could therefore have threatened to prosecute them if they didn’t participate in the program).
So what can we make of this? Items 1 and 2 seem to announce potentially quite broad principles: The government may not compel children to go through various educational programs — at least value-laden ones such as the one involved here — or threaten retaliation if they don’t go through the programs.
But item 4 dramatically limits the scope of that, at least when it applies to alternative-to-prosecution programs such as these. How much precedential effect will items 1 and 2 have when item 4 is inapplicable, for instance when (1) the state imposes some mandatory curricula on private schools as well as public ones, or (2) the state threatens the withdrawal of privileges (say, a driver’s license, or access to some government program) rather than a criminal prosecution? Not at all clear. I’d love to hear more thoughts on this, especially from people who are familiar with this general area of the law. (Plus I hope to blog more about this later myself as well.) But in any case, I wanted to pass this along, since I expect many of our readers will find the parental rights and free speech issues here to be quite interesting.
Thanks to How Appealing for the pointer.
Adam B. says:
I recapped this briefly on DailyKos. What’s fascinating to me is the injunctive aspect — it’s not “you did this, and now you’re civilly liable” but “a court will bar a prosecutor from acting,” which is a separation of powers thicket.
March 17, 2010, 7:25 pm7 says:
Maybe I am a prude but pictures of 12 and 13 year old girls wearing their bras sounds kinda porny to me.
March 17, 2010, 7:30 pmruuffles says:
The court points out the bras are opaque so I don’t see how it’s different than what they would wear at the beach.
March 17, 2010, 7:32 pmEugene Volokh says:
7: The question isn’t whether they are “kinda porny,” but whether they fit within the statute, which bans, in relevant part, possession of depictions of
March 17, 2010, 7:33 pmArthur Kirkland says:
Skumanick, who had been Republican D.A. of a backwater county for 20 years, recently lost his job to a Democrat who ran on a “I have half a brain and I promise not to use my office to create creepy pretexts to get to talk with teen girls about sex and boobies and pictures and stuff” platform.
Another victory for the libertarian-liberal alliance.
March 17, 2010, 7:34 pm7 says:
They wear their bras at the beach?
March 17, 2010, 7:34 pm7 says:
sexual intercourse …, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” Porny or not, I don’t think the photographs in this case would qualify.
Well, that’s the thing. Girls in underwear is nudity, at least, traditionally. And pictures of girls in underwear, sad to say, could sexually stimulate “any person.”
March 17, 2010, 7:40 pmElliot says:
Perhaps the law school Skumanick attended can be highlighted? US News could assemble the alma maters of stupid prosecutors and factor them into the ratings.
March 17, 2010, 7:41 pmEH says:
7: it must be distressing to live in a world where the Macy’s Sunday ad supplement is pornographic.
March 17, 2010, 7:46 pmArthur Kirkland says:
A friend who practices in that county says Skumanick attended Ohio Northern, became D.A. about two years out of law school and, in his opinion, merged his campaigns with his prosecutions by outsourcing control of his office to the police.
March 17, 2010, 7:48 pm7 says:
EH: Macy’s shows 12 year olds in bras? Really?
March 17, 2010, 7:50 pmEugene Volokh says:
7: Can you point me, please, to any support for the proposition that “Girls in underwear is nudity, at least, traditionally” (at least in a legal context)? My sense is that this isn’t so, but I’d be happy to hear contrary evidence.
Also, I realize that social mores are quite sensitive to the precise garment involved; wearing a bra in public is seen as inappropriate even in places where wearing a bikini top in public wouldn’t be. But I don’t think the law is sensitive to that distinction.
March 17, 2010, 7:52 pmArthur Kirkland says:
Open a bar, put up a “Nude Girls” sign, collect a cover charge and send out dancers in underwear and swimsuits. See how that goes. Then, call the police to complain about the “nude bathers” overrunning beaches and offending non-prudes from Florida to Maine and California to Washington (not to mention every public swimming pool in the nation).
Or, consult a dictionary.
March 17, 2010, 7:55 pmneurodoc says:
“sexually explicit” – a friend of mine is a union steward in a federal agency. In that capacity, he has been called upon to represent fellow employees charged with using their computers to view pornography, an offense for which they can be fired. He is representing someone now who spent a good deal of time, enough to bring him to management’s attention, viewing photos of women in bathing suits and lingery, that is the sort of stuff seen in Sports Illustrated and Victoria’s Secret catalogues. The employee is being charged with viewing “sexually explicit” material and being put on leave without pay for a substantial period, and this will look very bad on his record.
Not “sexually explicit” as I understand that term, nor it seems as 18USC understands it, but this is not a criminal matter, nor otherwise in a court of law. Is it reasonable to allow more expansive definitions of “sexually explicit,” as management is doing, ones that don’t raise to the level required for an 18USC violation but strike a female superior as fitting? My friend the union steward has riled management by raising this defense and fears the employee will be disciplined more harshly if he doesn’t cop a plea and accept rather severe discipline for that which doesn’t seem much different from using the employer’s computer to watch YouTube when one should have been working.
Thoughts for me to pass along to my friend?
(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
March 17, 2010, 8:07 pm(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;
(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—
(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any
EvilDave says:
Yet another brick in the wall of the idea that prosecutors are out of control.
March 17, 2010, 8:11 pmEH says:
I haven’t seen one in quite some time, and without being involved in the operation I can’t testify as to the models’ ages, but last I checked they did sell those garments and did advertise such using models. I’m presuming they were minors, but coupling that with the various “or appear to be a minor” porn laws hither and yon it may be a distinction without a difference in the eyes of the law. Point being: I do believe Macy’s does or has run ads that you consider to be pornography.
March 17, 2010, 8:17 pm7 says:
Eugene, Google “girls in underwear” allot of porn comes up. That’s a descriptivist proof, correct?
Arthur, When I said girls, I was actually talking about girls, not women.
March 17, 2010, 8:17 pmDG says:
I have always thought that prosecutors who went nuts about sexting were like politicians with fiery anti-gay rhetoric – they protest a bit too much. If school officials or police find sexting going on, the obvious solution is confiscating the offender’s cell phones, permanently. It is likely this would happen with the cooperation of the parents, if they were approached sensibly.
However, the minute you start threatening people’s kids with felony raps for acting like kids, you have gone over the line of sanity.
My daughter tells me that sexting is common amongst the dimmer teenage set these days – common enough so that she estimates 25% of her schoolmates are “guilty”. We have discussed the matter and she knows if she is ever involved, her cellphone goes away for life.
March 17, 2010, 8:18 pm7 says:
OK, EH, but you could have just said, ‘you have no idea.’ Shorter and to the point.
March 17, 2010, 8:21 pmArthur Kirkland says:
This particular Brick In The Wall has been removed, by voters chanting
Prof. Adler may consider this Wednesday lyric an homage. Roger Waters may consider it an abomination.
March 17, 2010, 8:33 pmPersonFromPorlock says:
In a more perfect world, wouldn’t this finding make an 18 USC 242 prosecution of the prosecutor duck soup?
March 17, 2010, 8:37 pmEvilDave says:
The problem is that if someone else sends you a sexting picture you are technically guilty of child porn even if you delete the message.
In our county a prosecutor went after two 8th grader boys with felony adult sexual assault charges for being part of a group that were smacking other students on the butt. Girls also did this to boys but the girls were not prosecuted.
The case was finally withdrawn when some of the girls were so offended they publicly announced that they found the prosecutor’s conduct so offensive that they would not testify.
How do you think those boys relationships with women will be affected in the future? How much money did their parents have to pay in attorney fees? How much worry did the children and parents go through?
And what happened to the prosecutor? Nothing.
He wanted to send 2 ~13 year old boys to and adult prison as sex offenders where they would no doubt get raped repeatedly. Essentially the prosecutor wanted to commit pedophilia-by-proxy.
And nothing happened to him. The Bar Association did nothing. The judge did nothing. His supervisors did nothing.
The laws need to be changed to make prosecutors responsible when they Nifong someone.
March 17, 2010, 8:43 pmEvilDave says:
I should add that as a condition of the prosecutor dropping the charges the parents and kids had to waive any right to sue the prosecutor, etc.
March 17, 2010, 8:48 pm7 says:
Arthur, Strange you should point me to a dictionary since Merriam-Webster defines nudity as: “devoid of conventional covering.”
This also goes to Eugene: In our society, the conventional covering for twelve year olds is clothed.
March 17, 2010, 8:53 pmGuest14 says:
So your theory is that, given two people of the same sex who are wearing the same garment, it’s not true that that either (i) they are both nude, or (ii) they are both not nude.
This is very counterintuitive to me.
March 17, 2010, 9:07 pmArthur Kirkland says:
A person of any age, wearing a bra and underpants, is not nude.
And I gather some people haven’t been to a swimming pool (or park used for sunbathing) since the 1920s.
Does anyone support George Shumanick’s handling of this situation? (Thinking he might be a repressed zealot or a pervert is optional.)
March 17, 2010, 9:10 pmVisitor Again says:
Girls in underwear is not nudity and never has been. Look up the definition of nudity in any dictionary. It’s this kind of mindset that produces ridiculous, time-wasting, tax-wasting cases like this one, the only result of which is to bully, humiliate and terrorize little girls and their families. Please don’t ever run for public office. As for your comment about sexual arousal, perhaps you’d feel more at home in countries where females are forced to wear veils. In the meantime, keep your zipper up.
March 17, 2010, 9:18 pmChris Travers says:
EV: I am not entirely sure here. I would suspect that the teens in question intended the photos to be sexually stimulating even if teens might have a lower threshold about what is stimulating (I am sure a lot of teens get off on lingerie catalogs too). That would suggest that the photos probably do at least arguably fall within the statutory language.
To me the much more interesting questions are those of vagueness and first amendment protections, namely given that sexting is becoming a VERY common activity for teens, can it Constitutionally be criminalized, esp. when a conviction can mean a life-long obligation to register as a sex offender? Do teens have ANY first amendment rights to sexual expression relative to other teens?
I don’t know what the answers to these are or how they might transform first amendment law depending on how they are answered, but any answer I can think of requires rethinking the case law surrounding child pornography to some extent. IANAL though and so I could be missing something.
March 17, 2010, 9:21 pmChris Travers says:
Note the general description of this bit:
suggests a topless photo, and would qualify as partial nudity, if my reading is correct.
March 17, 2010, 9:25 pm7 says:
VA – Really? I just gave you a dictionary definition. Please don’t run for internet comments monitor. And why are you thinking about my zipper? Perv.
March 17, 2010, 9:26 pmSuperSkeptic says:
Indeed.
There also needs to be a legislative response to “sexting” apparently because a few too many prosecutors either do not know how to read or are abusing their powers.
There just comes a point in the vagueness where you have to stop and see what a statute like that is for. It’s not for childish play.
{I would just add that I’m glad the court put a stop to this as well; it’s a start}
March 17, 2010, 10:22 pmDavid M. Nieporent says:
Apparently you forgot to look up the word “devoid” in this dictionary of yours.
March 17, 2010, 10:35 pmEugene Volokh says:
Folks: Let’s keep it substantive and polite.
March 17, 2010, 11:24 pmChris Travers says:
Just to recap: this was clearly a totally out of control prosecutor and we don’t honestly know to what extent this outrage may have cost him his election. The bit about the bathing suit picture is well across the line. Maybe the topless picture might have been within the bounds of the statute, but I don’t know.
However, this prosecutor was by no means unique. The fact is that teens are doing this all over the country and much of it involves fairly sexual content (including photos). When you start taking an activity which is so commonplace and slap sex-offender status on it, it makes me VERY concerned.
One thing I didn’t note in the appellate decision that was present in the district court decision: the district court noted that it was quite possible that the photos were Constitutionally protected. The appellate court seems to have taken this to mean that the issue was deferred. This is perhaps the most interesting element of the case: Does an adolescent girl have a right to take a topless photo of herself and send it to her boyfriend? The district court entertained the possibility but didn’t rule on it as a legal issue either way (perhaps waiting for a fuller record of fact).
As the case progresses, I expect to see this issue become the most interesting issue of the case. If the content is ruled as protected, and if it is upheld on appeal, this could significantly alter the scope of enforcement of child pornography laws against teenagers engaged in sexting.
March 17, 2010, 11:39 pm7 says:
Hardly. “Devoid: being without a usual, typical, or expected attribute or accompaniment.” Merriam-Webster Online Dictionary. A 12 year old is usually photographed clothed. Indeed, it’s expected.
March 17, 2010, 11:46 pmKen Arromdee says:
From reading the case, it looks to me like the ruling says that prosecutor must lack probable cause in order for the demand to constitute retaliatory prosecution. That doesn’t mean that probable cause makes the demand legal, it just means that if it’s illegal it must be illegal under some theory other than being retaliation. No such theories were considered by the court, because the plaintiff didn’t advance any. (And none were needed in order to get the preliminary injunction anyway.)
March 17, 2010, 11:53 pmChris Travers says:
Given absolute immunity for prosecutorial actions, what choice is there?
March 18, 2010, 12:45 amJay says:
At least under federal law, your opening statement is not true. Federal CP law has a knowingness requirement. If someone just sends CP to your cell phone unsolicited, you haven’t knowingly received it.
7–I think the question is, why are you reading “conventional clothing” not to include underwear? Don’t people conventionally wear underwear? So if they’re still wearing some, they aren’t “devoid” of conventional clothing, no?
March 18, 2010, 12:49 amDave Hardy says:
So the prosecutor is showing people the very pictures he argues constitute child porn? I think he is obligated to indict himself and plead guilty, the degenerate.
March 18, 2010, 1:28 amRobert says:
IANAL but I am an investigator who has investigated sexting cases. And before anyone asks No, I did not submit any charges to the DA for prosecution (although at least one of them fit the child porn statutes). There may be circumstances where I would but I haven’t run across one yet. I looked at the intent of the juveniles as the controlling factor. They were sending the pictures from one juvenile to another and their intent was not to violate the law, they were being kids who didn’t consider the consequences of their actions, like all of us did when we were that age. I personally met with each parent and showed them the pictures and then the parents and I met with the juveniles to discuss the consequences of their actions. Why use the sledgehammer (prosecution) when the tack hammer (working with the parents to change the behavior) makes more sense. The prosecutor in this case was not working with the parents he was trying to dictate to them how they should deal with their child’s poor choices.
March 18, 2010, 2:22 amwntfvg38ghwgb says:
This is another disturbing example of how the police and prosecutors are out of control. Who will punish them for the harm they have done to these children?
March 18, 2010, 4:46 amAnatid says:
… If an adult is becoming aroused by viewing pictures of 12-year-olds in any amount of clothing, then there’s something wrong. Unless we’re talking about some very early bloomers, some of these girls have barely begun to enter puberty, and are certainly not sexually developed. An adult shouldn’t find preteens attractive.
Of course, a fellow 12-year-old will have different standards.
Anecdote time: I remember when I was 14 or so, and I sent some mostly-unclothed photos of myself to a fellow student I’d been flirting with. I didn’t see anything wrong with it at the time, and I rather doubt either of us were scarred by the experience. It had never occurred to my parents to tell me not to do this or explain to me why it was a bad idea. All the other advice they’d given me on proper online conduct (picture phones weren’t around yet, at least not in the hands of kids) I followed dutifully. Sending out a flier to parents in the school suggesting they have a talk with their children would be far more effective than any amount of scare legislation.
March 18, 2010, 5:07 amDeezrightwingnutz says:
I guess this applies to any possession crimes, but how are police officers not guilty of the same possession crimes as the perps? Is it just prosecutorial discretion that saves them? Are there statutory exceptions for possession of contraband crimes related to POs and/or prosecutors?
If I found a large bag of drugs, or better yet, intervened to stop a drug deal, I wouldn’t expect to be prosecuted for possession if I drove to the police station and turned them in. However, if I waited a couple days because my car was in the shop, and the police came over for a noise complaint, I’d expect that I’d have some ‘splainin to do if they spotted the bag-o-drugs on my kitchen counter.
March 18, 2010, 6:24 am7 says:
The issue is not about conventional clothing, it’s about conventional clothing worn in photographs. Specifically, 12 year old girls. Devoid means, without what is usual or expected. See prior definitions.
March 18, 2010, 7:17 amOn That “Sexting” Prosecution | Little Miss Attila says:
[...] Volokh on parental rights, and the rights of [...]
March 18, 2010, 7:55 amSoronel Haetir says:
When I’ve seen contraband laws quoted they’ve contained exceptions for police, prosecutors, sometimes even jurors (obscenity comes to mind here, where the jurors have to judge the material) itself.
March 18, 2010, 7:55 amrarango says:
I tend to not share Arthur Kirkland’s political positions, but it seems to me that he nails it on this one. Well done sir.
March 18, 2010, 8:10 amMichael P says:
Do you mean that the definition of “nudity” depends on whether pictures are taken of the possibly-nude person? If so, do you have any legal basis for this proposition? The “prior definitions” do not (at least on their face) indicate that photography, or lack thereof, bears on what constitutes nudity — it seems like you are adding qualifications to shore up an argument that others have refuted.
March 18, 2010, 8:11 amR.L. Hunter says:
So by 7′s definition Sears was guilty of child porn back when they still printed a catalog.
March 18, 2010, 8:28 amT J Sawyer says:
Just a curious thought. Back in the fifties, in seventh grade, a friend brought a National Geographic to school. Let your imagination run wild!
If today, he took a photo of “the page” and sent it to me would I be guilty of possessing child pornography?
March 18, 2010, 8:39 amNick says:
The thing that I find the most insane is that the DA was threatening to prosecute the girls featured in the pictures, not any of the (hypothetical) pedophile adults who might get hold of the pictures. Isn’t the point of child pornography laws to protect the children victimized by it? The prosecutor’s theory seems to be that the girls were victimizing themselves, so he wants to prosecute the victims to protect the victims. Wuh?
March 18, 2010, 8:46 am7 says:
No. Nudity is being devoid of conventional covering, and devoid means, without what is expected. See definitions, above. Expectation is generally situational.
Sears never used pictures of 12 year olds in bras.
March 18, 2010, 8:48 am7 says:
Yes, Nick, that reason is why the Court, rightly found no crime by the girl.
March 18, 2010, 8:50 amSteve P. says:
I recognize you’re merely trolling, but I thought I’d clear up this point:
Yes, they did. So did JC Penny’s. And various other catalogs – my family ordered just about all our clothing from those things, back in the day.
March 18, 2010, 9:31 amEric Jablow says:
Was Coppertone guilty of distributing child pornography?
March 18, 2010, 9:36 amplutosdad says:
If he thinks a girl making a peace sign is provacative I think it’s the prosecutor who has a problem.
Actually if you read transcripts of witch trials (and records of the “tests”) in Europe, you see lots of poking and prodding of women by guys who don’t know anything, and the argument that much of that abuse of women was perpetrated by sexually dysfunctional people has some weight to it.
Seeing things like this makes me wonder about the particular prosecutors
March 18, 2010, 9:48 am7 says:
I understand, you find the whole area of modern obscenity/pornography/lewdness law so emotional but it is based on the idea that this judgment is, in fact, situational. Thus, we hang artists in galleries and child pornographers in the public square (figuratively).
(Steve P.: No. They did not.)
(Ed. Apparently, the comment I responded to was just deleted after I posted this).
March 18, 2010, 10:00 amMichelle Dulak Thomson says:
7,
Steve P. and others are right: Sears absolutely did put underage girls in underwear in its catalogue. So did other retailers. (So do other retailers right now, though since I just took the recycling out, I haven’t any evidence on hand.)
Do a search for children’s underwear on Amazon, as I just did (but do tell Amazon that you’re not the regular user of that computer, but someone else, as I forgot to do — I suppose I’m going to be getting “As someone who has shown an interest in” e-mails about this for months, dagnabbit). Most of the illustrations don’t use models, but a few do; and the ads down the left edge routinely do.
March 18, 2010, 10:13 am7 says:
Michelle: The entire 1975 Sears’ catalogue is online, where are the bras on twelve year old girls?http://www.flickr.com/photos/wishbook/sets/72057594059350688/
(I really don’t want to do your search, could you link a picture of a 12 year-old in a bra from a catalogue?)
March 18, 2010, 10:32 am7 says:
http://www.wishbookweb.com/
Also, shockingly (or not for the WWW), catalogues from many retailers from the 40s to 1988.
March 18, 2010, 10:48 ammariner says:
No one. That’s the really bad part.
If I had children and this happened to us, I’d be seriously considering conduct that (were I convicted of it) would put me in prison for a long time.
March 18, 2010, 10:51 amexplodingbbq says:
For 7
(Hopefully the links work; I’ve never done this before.) Their faces are partly cut off, but it’s pretty clear that they are pre-pubescent girls.
March 18, 2010, 11:05 amJohn says:
here you go
http://3.bp.blogspot.com/_TIIaWWdrytE/R4aT9ugURWI/AAAAAAAAAto/3OYHjLfqamA/s1600-h/Sears-herfirstbra.jpg
I did notice your links were all Christmas catalogs. I didn’t see any undergarments for girls, buys, men or women. I guess it’s not much of a Christmas item.
March 18, 2010, 11:24 amThird Circuit Upholds Injunction of Threatened “Sexting” Prosecution « We Dare to Defend says:
[...] Circuit Upholds Injunction of Threatened “Sexting” Prosecution The story here, is about a prosecutor who takes the law into his own hands and makes me think of the recent [...]
March 18, 2010, 12:10 pmlosantiville says:
On the general topic of state curriculum for private schools and homes schools, New Jersey has two requirements:
“regular courses of instruction in the constitution of the United States from the 7th grade and through high school. N.J. Rev. Stat. § 18A:6-3.” and
“regular courses of instruction in accident and fire prevention. N.J. Rev. Stat. § 18A:6-2.”
Listing of private school regs in all the states from the Ed Dept here: http://www2.ed.gov/pubs/RegPrivSchl/index.html
Iowa is a lot more bolshi requiring certified teachers and things like:
Instruction in English, at a multicultural, nonsexist approach, global perspectives be incorporated, a minimum educational program as defined under § 256.11, a comprehensive curriculum for grades K-6, 7-8 and 9-12 from traditional course offerings to instruction in acquired immune deficiency syndrome. Iowa Code §§ 256.11, 280.3., one unit of U.S. History and one-half unit of U.S. government which shall include a study of the constitution, and relevant voting statutes and procedures., career education – The essential elements of career education must include: 1) awareness of self in relation to others and the needs of society; 2) exploration of employment opportunities and experience in personal decision making; and 3) experiences which will help students to integrate work values and work skills into their lives. Iowa Code § 280.9., and finally 5 units of occupational education subjects e.g. business/office occupations, trade and industrial occupations, consumer and family sciences or home economics occupations, agriculture occupations, marketing and health occupations.
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Quite a lot to swallow. The Iowa requirement of certified teachers was blown off by Christian schools in the early 80′s and they haven’t enforced it.
The teaching in English requirement would seem to violate some of the decisions in the litigation surrounding Pierce.
Multi-Culti non-sexist teaching requirements would clearly violate the the compelled speech rights of religious schools (and non-religious schools that hate that crap.). I doubt there’s much enforcement in any case.
I note that there’s at least one Classical Christian School in Iowa and I doubt if they match the requirements of the official curriculum.
A detailed official curriculum would seem to be inconsistent with both parental and teachers rights. There are so many different teaching approaches. Maybe I want to use Ratio atque Institutio Studiorum Societatis Iesu from 1599 at my boys school. And since my rulers can’t even read my curriculum, they can’t even judge if it’s sufficient.
Education is pretty important speech and was unregulated at the time the 1st was adopted. I don’t think regulation will work (see development of home schooling over 30 years) and is not a good idea. I suppose a court could find it constitutional, however.
Regulation of public schools has certainly not worked too well.
March 18, 2010, 12:47 pmRINO in Name Only says:
You keep using that word. I do not think it means what you think it means.
March 18, 2010, 12:54 pmBleh says:
INCONCEIVABLE!
March 18, 2010, 1:21 pmfirst history says:
….wearing a bra in public is seen as inappropriate….
You mean like Sue Ellen Mischke, heiress to the Oh Henry! candy bar fortune and nemesis of Elaine Benes?
March 18, 2010, 1:35 pmJohn Rohan says:
If Shumanick was replaced, then why did the court still entertain this decision? If his replacement was against the whole thing, wouldn’t it have become a moot point?
March 18, 2010, 1:41 pmJohn Herbison says:
I haven’t read the opinion, but generally when there is an issue on appeal as to whether expression is or is not First Amendment protected, appellate review (on that issue) is de novo pursuant to Bose Corp. v. Consumers Union. If the photos in question were child pornography, they would be unprotected, and probable cause would likely be present. If the appeal was from the granting of a preliminary injunction, the inference that I draw is that the plaintiffs had shown a likelihood of success on,among other things, their contention that the photos are not child pornography.
If the parents had waited until a prosecution in state court had actually been brought, then the federal courts would likely have abstained under Younger v. Harris. If a prosecution were merely threatened unless the girls engaged in compelled expression, then there is a First Amendment problem, and abstention is not a bar.
March 18, 2010, 1:42 pmuh_clem says:
It reminds me of the old story about a guy who takes a Rorschach test, and upon being diagnosed as a pervert exclaims “What do you mean I’m a pervert? You’re the one with all the dirty pictures!”
March 18, 2010, 1:43 pmGuest14 says:
So a ship would be “devoid of its conventional complement of 60 crew members” if only 55 crew members were aboard? This can’t be right.
March 18, 2010, 1:51 pmChris Travers says:
That’s not really what I am getting at.
“Child pornography” is a first amendment exception which may seem to have some fuzzy borders (as in this case, for example, where one of the photos mentioned was topless). The Supreme Court has upheld this exception to the first amendment on the basis that it is a protection against adults preying on teens. We can all agree that this is a good thing.
However, what do you do when you have a lot of teens taking pictures of themselves at least partially nude and sending it to their boyfriends or girlfriends for the purpose of sexually exciting them? That’s pretty clearly within the statutory definition of child pornography, but it fails to meet the Ferber rationale. After all, it is pretty absurd to throw kids in jail, brand them as sex offenders for life, etc. in the name of protecting them from sexual predators. In essence, unlike in Ferber, the activity in question is unquestioningly noneconomic and untied to economic activities other than cell phone data transfer charges, it is not tied to predatory actions or to actual child abuse, and it may have some expressive value.
If it is an occasional deviant, I could see one saying “let’s not revisit the categorical declaration in Ferber” but if it is commonplace activity, then you have a problem which reaches the fifth amendment as well.
I am not sure you can say “it’s child pornography and therefore it’s unprotected.” Instead I think the question is whether it is unprotected and therefore child pronography.
March 18, 2010, 2:04 pmChris Travers says:
So, if I take a photo of an infant dressed up as Adolf Hitler, that is clearly unexpected. That makes it nudity?
March 18, 2010, 2:07 pmMichelle Dulak Thomson says:
Wrt “devoid of conventional covering,” I think the writer must have been trying to find a pithy way of saying “having uncovered the bits that are conventionally covered,” and missed the mark. A 12-year-old girl in bra and panties has “covered” the body parts that are “conventionally covered.” So, for that matter, does a 12-year-old girl in a burqa, or a 12-year-old girl in a Spiderman costume. All three are, I think, “unconventional coverings” in a context like a public street in the United States; but I don’t think even 7 would argue that the second and third girls are therefore nude.
Mind you, I think the definition even as I just interpreted it is silly; a topless woman isn’t “nude” either, in ordinary understanding.
March 18, 2010, 2:14 pmChristopher Cooke says:
this is a gross abuse of prosecutorial authority. Indeed, I think it is an unconstitutional abuse and could subject him to a civil lawsuit under Section 1983.
Mind you, if this had involved nude pictures being sent around via texting, I would not object to a prosecutor opting for diversion in lieu of prosecution. Indeed, I would think that would be entirely appropriate. But, this was not.
And, 7, my daughter is this age and I agree that I will not let her leave the house wearing just her underwear (or let her go to school in her pajamas, as she asked me one day), but I would be shocked if anyone tried to arrest her for being “nude” in public and would file a lawsuit against the police if they arrested her for public “nudity.” (She is pretty modest about such things, so I am speaking hypothetically).
March 18, 2010, 2:31 pmChristopher Cooke says:
I meant, a civil lawsuit for damages, and not just the injunction that was issued.
March 18, 2010, 2:32 pmChris Travers says:
But we might say the topless woman is “partially nude” and therefore it might fit the nudity requirement of the statute.
March 18, 2010, 2:34 pmPersonFromPorlock says:
Ah, but she hasn’t covered the covers with their conventional coverings! Rampant nonconformity, dogs & cats sleeping together and the end of Western civilization!
March 18, 2010, 2:50 pmJust Dropping By says:
Actually, the Court doesn’t even really need to revisit Ferber (although I would personally agree that Ferber is probably one of the Court’s most poorly reasoned decisions and should be modified, as Kennedy hinted at in the Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) decision). A lot of the more abusive “sexting” prosecutions/investigations could be avoided by overruling or modifying Osborne v. Ohio, 495 U.S. 103 (1990), which created a child pornography exception to the rule from Stanley v. Georgia, 394 U.S. 557 (1969) that a person could legally possess obscenity in their home. For example, it could be deemed protected conduct for individuals to possess nude photos of themselves regardless of their age. (After all, most people see themselves naked on a daily basis. It seems very odd to make it a felony to possess a photo of something you can legally see at any time.)
March 18, 2010, 2:57 pmArthur Kirkland says:
Here is some evidence that Skumanick, the Republican, has been replaced.
And here is some evidence that the successor, a Democrat, is not much better than Skumanick (although the successor’s opinion is less troubling until it becomes activated).
March 18, 2010, 3:06 pmFedya says:
I had an uncle who, every year for Christmas, gave each of us kids a new pair of pajamas.
March 18, 2010, 3:07 pmJohn Herbison says:
I don’t know why absolute immunity under Imbler v. Pachtman would not apply to a suit for damages. The prosecutor’s conduct did involve deciding which case to bring (or to not bring) on behalf of the Commonwealth.
That having been said, I wish that Congress would create an exception to absolute immunity for prosecutors who maliciously and intentionally violate the constitutional rights of an accused, at least in egregious cases.
March 18, 2010, 4:28 pmSeamus says:
Since you’d probably be guilty of possessing child pornography if you now bought one of those books of “arty” photographs by David Hamilton that were all the rage during the 1970s, I’m guessing yes.
March 18, 2010, 4:41 pmChris Travers says:
I personally think the appropriate issue here should be a narrowing of Ferber. The problem with creating a possession safe harbor regarding child pornography is that it would still leave the individuals sending photos of themselves open to charges, and it would make real child pornography much harder to fight.
I think Ferber should be limited to cases where there is a substantial age difference or where actual child abuse is at issue. This would solve the problems entirely.
March 18, 2010, 4:44 pmJohn Herbison says:
Images of “children” in sexual situations, that do not involve an actual minor, (such as computer simulation or a youthful appearing 18 or 19 year old) may be First Amendment protected notwithstanding Ferber, per Ashcroft v. Free Speech Coalition.
March 18, 2010, 4:54 pmVisitor says:
The court in this case found that the prosecutor threatened to prosecute even though there was no legal basis to do so. It’s pretty obvious that this is inappropriate and deserves some kind of sanction.
It’s one thing for a prosecutor to say to some parents “Your kids comitted a crime, and I could prosecute them, but I’ll hold off if they’ll just attend this educational course.” If the kids actually did commit a crime, then this is totally appropriate.
On the other hand, if the prosecutor is lying, and the kids didn’t commit a crime, then the situation is dramatically different.
March 18, 2010, 5:00 pmChris Travers says:
Can we extend that holding to other cases of actual minors where no actual abuse is alleged and which falls outside the Ferber rationale?
March 18, 2010, 5:41 pmray_g says:
Isn’t the real problem with issues over “sexting” that the definition of child pornography is too broad? Pictures of teenagers in their underclothes, or even nude, taken by the subject, or at least with the subject’s permission, and sent by them or with their permission, to others in their age group, is hardly in the same class as pictures and films of much younger children being forced to have sex with adults or each other, which is the vile type of material that IMO most people think of as “child porn”. Once more, irrational panic over a real issue yields an absurd result.
Overly broad laws are ripe for abuse by DAs and LEOs.
March 18, 2010, 5:44 pmJohn Herbison says:
We cannot; SCOTUS can if it chooses to.
March 18, 2010, 6:12 pmAnatid says:
For similar reasons, a “sex offender” can be put on the same list as serial rapists if he or she is convicted of public nudity or public urination in some states. How dare you suggest that we be soft on sex offenders! I would never re-elect you, sir!
Welcome to democracy at its finest.
March 18, 2010, 7:03 pmChris Travers says:
Well, I noticed that the district court in this case saved the question of whether there was a first amendment interest in even the topless photo for trial. Even though this might in other circumstances arguably qualify as child pornography, I think this is a hopeful sign. There wasn’t a lot of discussion though.
Also is there any reason that throwing a minor in jail for producing child pornography and branding that minor as a sex offender for life wouldn’t violate due process of law and/or the 8th Amendment?
March 18, 2010, 7:45 pmLoboSolo says:
You must burn the village in order to save it!
March 18, 2010, 9:30 pmMark Pickrell says:
Why is this case not covered by the Anti-Injunction Act? (28 U.S.C. 2283, I believe.) Since the first judiciary act, we’ve not permitted federal courts to enjoin State criminal prosecutions. Although the Sixth discusses Younger abstention, it is silent on the Anti-Injunction Act. Does anyone know why? Was this issue raised by the parties?
March 18, 2010, 9:55 pmMark Pickrell says:
Correction to prior post: not “Sixth” but “Third.”
March 18, 2010, 10:01 pmjukeboxgrad says:
7:
250 pages from the 1938 Sears catalog can be seen here.
Page 152 is here. The page heading says “The Coed Shop – Where Juniors and Little Women Find Slips That Fit!” At the lower left-hand corner, you can see a female model posing in a “Hookless Brassiere” (19 cents!), under a heading that says “Francine Rayons in Junior Miss Sizes.” What age category does “Junior Miss” imply, in your opinion? Someone over 18? And how old does that model look to you? Here’s a clue: the size range for that product is “28 to 34-inch bust.” Here’s another clue: sizes for bras for adult women usually start at 32-34.
In the lower right corner of that page you can find “Knit Rayons for girls 2-14 years,” and you can see nude (by your standards) female forms posing in “Panties” and “Bloomers.”
You might also enjoy the next page (153), which is entitled “Classmate Slips for Schoolgirls and Little Sister.” The lower-right corner of that page presents “Panties” and “Bloomers” for “Girls 2 to 14,” and you can gaze at the lovely model posing in the merchandise. How old would you say she is?
You might also enjoy page 241, where “A Very Young Lady Reminds Us ‘I Want Undies that Don’t Show.’ ” Except that on this page, the “undies” do show.
You might also enjoy page 242, where you can gaze at boys “Ages 2 to 12 years,” posing in their underwear. And more of that on page 243.
You now need to disinfect your computer, because it has contained child porn (by your standards).
March 18, 2010, 10:12 pmJay says:
I suspect the Anti-Injunction Act doesn’t apply because there is not yet any “proceeding” in state court to enjoin; rather, the prosecutor is enjoined from bringing charges in the first place. Basically the same reason Younger doesn’t apply. But if you just want to know why it wasn’t discussed, probably because it wasn’t raised.
March 18, 2010, 11:47 pmKen Arromdee says:
By this reasoning the prosecutor could find someone who committed a crime and say “I won’t prosecute you if you convert to Christianity. Oh, and you also join the Republican Party.”
(And if your response is “he can’t do that because that demand would violate the First Amendment”, well….)
March 19, 2010, 12:30 amJay says:
Attending an educational course would violate the First Amendment? Anyway, prosecutors and defendants make pretrial diversion agreements like that all the time.
March 19, 2010, 12:44 amRicardo says:
All this talk of pre-teens in underwear reminds me of an old joke about censorship — I can’t remember if this exchange actually happened or not, though. A very prim and proper Victorian lady is speaking with a publisher who has just come out with a new edition of an English dictionary:
Victorian woman: “I read through your dictionary and was very relieved indeed to find it did not contain any filthy words in it.”
Publisher: “Madam, I’m surprised you knew where to look.”
March 19, 2010, 2:48 amPorkchop says:
When I was about 10 or 11, the Sears and Montgomery Ward catalogues were very interesting to me in a prurient sort of way — not as much as National Geographic, but that was not always available.
I’m not sure whether I thought it was “pornographic” in any sense, but it sure was titillating at the time (early ’60′s). That being said, this is not the early ’60′s, and the catalogue models were definitely not “nude.” Nor, apparently, were any of the girls who were threatened with prosecution.
March 19, 2010, 1:13 pmStringent Constitutional Limits on Anger Management Classes, Anti-Drug/Alcohol-Abuse Classes, or Even Traffic School as Alternatives to Prosecution? « New Top Buy says:
[...] blogged Wednesday about the Third Circuit’s “sexting” decision, mostly to summarize the reasoning. Now that [...]
March 20, 2010, 10:40 amJennie says:
I think this is just another example of how litigation seeks to have control over everything; it really isn’t needed. ‘Sexting’ isn’t a crime – it has no victim, nobody seeking to do wrong, and no wider effect on the world at large.
If there is an argument for the morality of it; especially when vulnerable, or younger people are concerned, then it should be considered that morality is determined by the social group of the perpetrator – not an arbitrary standard of law divorced from their lives.
Of course though, group morality is broken down regularly by the litigous Governmental forces so youngsters run amok, knowing that they can bring legal suits to their parents for interfering if needs be. It reminds me of Rome before the fall. (Not that I was there, although I feel that old sometimes!)
September 16, 2010, 6:54 am