I blogged Wednesday about the Third Circuit’s “sexting” decision, mostly to summarize the reasoning. Now that I’ve had a day to think some more about it, let me now follow up with a brief discussion of the implications
First, recall the court’s reasoning:
(1) Requiring the girls who were suspected of illegal sexting to go through an education program violated the parents’ parental rights.
(2) It also violated the girls’ “First Amendment freedom against compelled speech,” because the program required participants “to explain why [their] 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), a case which held that a damages lawsuit for retaliatory prosecution could only succeed if there was no probable cause prosecution. The prosecutor hadn’t shown probable cause here, the court concluded; but “The District Court may revisit this determination at a later date, and the District Attorney is free to move to vacate the injunction if he thinks he has secured probable cause. In Hartman, the Supreme Court held that plaintiffs bringing retaliatory prosecution claims must allege and prove lack of probable cause as an element of causation. Therefore, if probable cause exists, the injunction must be lifted.”
Here, though, is the difficulty: Nothing in the court’s discussion of Hartman v. Moore precludes the defendants from raising a retaliatory prosecution defense if they are actually prosecuted even if there is probable cause to prosecute them. Such a claim — that one’s constitutionally protected conduct was a but-for cause of one’s prosecution — would be a defense against the prosecution, again even if the person is guilty of the offense. (See, e.g., Wayte v. United States, 470 U.S. 598 (1985); Fedorov v. United States, 600 A.2d 370 (D.C. 1991).)
Selective prosecution defenses are generally very hard to prove. It’s rarely clear that the prosecutor chose to prosecute a defendant — especially when there was probable cause to prosecute the defendant, and when the defendant was in fact to guilty — because of the defendant’s constitutionally protected speech (again, in the sense that but for the defendant’s speech, he would not have been prosecuted). And courts are extremely reluctant to allow discovery of information that might help prove such selective prosecution.
But when the prosecutor says “Go through this education program; if you do, I’ll drop the charges, but if you don’t, I’ll prosecute you,” the defendant doesn’t go through the program, and the prosecutor does prosecute, there’s no real question that the defendant’s refusal to go through the program was a but-for cause of the prosecution. The prosecutor admitted this.
Now I suspect that most prosecutors, when faced with this, would say, “So? Of course I admitted this. I was doing the defendant a favor: I was giving her a chance to avoid prosecution if she only took a course that I think would have helped prevent her from committing the crime again — would have helped prevent her from driving drunk again, or using drugs again, or vandalizing synagogues again, or getting into fights again, or producing illegal sexually themed pictures of herself again. The defendant didn’t take the chance, and I prosecuted her, as promised. Sure, her refusal to take the class was a but-for reason for the prosecution (not the only reason, since her original misconduct was also a reason, but one but-for reason). But there’s nothing wrong with that.”
What’s noteworthy about this Third Circuit decision is that it says there is something wrong with threatening a defendant — especially a juvenile defendant — with prosecution if she refuses to take a class: In items 1, 2, and 3 of its analysis, the Circuit concludes that such a refusal is a constitutionally protected exercise of parental rights, and of the child’s freedom from speech compulsions. And while item 4 says that retaliatory prosecution can’t form the basis for a damages action unless there’s probable cause to prosecute, well-settled retaliatory prosecution law holds that retaliatory prosecution for constitutionally protected speech (and, presumably, the defendant’s parents exercise of their parental rights) is a defense to the criminal charge. So while the Circuit says that “if probable cause exists, the injunction must be lifted,” and the prosecution will be allowed, the prosecution will be futile, again even if there’s probable cause to prosecute.
There are indeed some limits on this holding. The judges, for instance, “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.” But they don’t really tell us much about the distinction, other than to say that there “is a disconnect with the criminal and juvenile justice systems” in the “what it means to be a girl” educational program — even though I take it that the purpose of the program would be to prevent criminal activity (and some sexting would indeed be criminal). Moreover, why isn’t a requirement that one acknowledge responsibility (or face prosecution or a higher sentence for not acknowledging responsibility) a presumptively impermissible speech compulsion, even if it is fully connected “with the criminal and juvenile justice systems”?
Likewise, the freedom-from-compelled-speech aspect of the holding only applies when the defendants have to say things, and not just when they have to listen passively. But I take it that most such programs, to be effective, require some interaction; and even if they don’t, the program might violate the parental rights holding.
Now perhaps this is all good and prosecutors shouldn’t be able to use the threat of prosecution to compel potential defendants (especially minors) to participate in “education programs” that require them to say things they don’t believe. Maybe prosecutors should just prosecute those as to whom there’s probable cause to believe they committed a crime, with some prosecutorial discretion based on the circumstances of the offense but not based on the defendants’ willingness to be “educated.” I’m not sure that this is right, but I think this is a plausible position.
At the same time, it’s important to realize the potential breadth of such a holding: It would mean that pretrial diversion programs that seek to substitute rehabilitative education for prosecution, in cases (usually involving first offenses or not very serious offenses) far beyond sexting — for instance, drug crimes, drunk driving, assault, domestic violence, child neglect, traffic law violations, and the like — would be presumptively unconstitutional. Such coerced participation in “the education program[s] would violate [defendants'] First Amendment freedom against compelled speech” just as coerced participation in anti-sexting classes would (probably even as to adults and certainly as to minors). Perhaps there might be exceptions for mere coerced listening, with no coerced speech, though that’s not clear. Perhaps there might be exceptions for requirements that one admit responsibility and no more. But many such programs would now be constitutionally suspect, and, if the Third Circuit decision is followed, likely unconstitutional.
To be sure, prosecutions following people’s refusal to participate in the programs couldn’t be enjoined if there’s probable cause to believe the person did commit the crime. But the retaliatory prosecution for failure to participate in the education program would be stymied by the availability of the retaliatory prosecution defense at trial. That’s a pretty big deal, it seems to me, so I wanted to identify it and discuss it.
Thanks to Hashim Mooppan for his correspondence on this, which helped me focus more closely on this question.