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19-Dec-2014 15:45

And for reasons not clearly known to me, the school turned the matter over to the local district attorney, George Skumanick, Jr., who then decided, for reasons also unknown to this writer, to prosecute the kids; rather, he decided to to prosecute.

Among the many thorny issues suddenly on the table was whether children could be prosecuted for distributing non-lewd, semi-naked photographs of themselves.

It is hard to be a reporter in America for very long, including as one trying to fathom our richly diverse public education system, without having to deal with a Constitutional issue.

And so I jumped at the offer last winter from my friend and former colleague at Life Magazine, Todd Brewster, to become a Jennings Fellow at the Peter Jennings Project for Journalists and the Constitution.

In this case, two underage girls were posed from the waist up in their bras and a third girl was shown just emerging from the shower with a towel wrapped around her waist; the pictures were taken by the children and sent by them. This was where Vic Walczak entered the picture, so to speak. That was the question Walczak posed to us during our Jennings seminar. In a March 2009 ruling, Judge James Munley wrote that while such an injunction is an “extraordinary remedy,” he would grant it because “the parents in this case have a Fourteenth Amendment substantive due process right ‘to be free from state interference with family relations.'” He also found that that defendants had made a strong case — would be “likely to succeed on the merits” — that “being compelled to describe their behavior as wrong on threat of a felony conviction forces them to express a belief they do not hold and thus violates their right to be free of compelled speech.” Munley also ruled that the “threat of prosecution has a chilling effect on plaintiffs expressing themselves by appearing in photographs, even such innocent photographs as those in bathing suits.” In March of this year, shortly after the Peter Jennings Project conference, the Third Circuit Court of Appeals agreed, ruling that prosecution of the Tunkhannock teens was “in retaliation for [the plaintiffs’] exercise of her constitutional rights not to attend the education program,” effectively ending prosecution of the case before it began.

Even though the Court did not reach – because it didn’t need to – the alluring question of whether a child sending a picture of him or herself can be child pornography, the victory was an important message to prosecutors that the Constitution sets limits on their authority to prosecute students for sexting.

The other two pending school-related cases that Walczak has overseen involve questions about the reach of school authority.

(Todd worked with the ABC News anchor on several projects, including the big bestseller It was an intense weekend in Philadelphia rubbing elbows – and sharing bagels — with the likes of Ken Starr, Jeffrey Toobin, and Guido Calebresi, but I was surprised by the number of Constitutional questions arising these days in the public schools and was lucky enough to be in a workshop run by Vic Walczak, legal director for the ACLU in Pennsyslvania, a man who has had his share of education challenges lately.

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Obviously, an adult could be charged for such an offense; after all, it was exploiting a minor. Walczak explained that because the prosecutor was demanding that the students say certain things or get prosecuted, it was not a free speech case but one of “compelled speech.” (Having just finished a book about the Pledge of Allegiance, I am familiar with the Jehovah’s Witnesses successful defense of their children’s right not to be forced to say the Pledge at school, as determined in , but that was 1943.) Skumanick had not charged anyone with a criminal offense, but he was demanding that suspects say certain things –writing an essay and attending the re-education program – in order to avoid prosecution.But could you be both a perpetrator and a victim in the same crime? Mitchell in the appeals court) got even more interesting because the prosecutor told the dozen students caught up in the affair, that he would not prosecute them if they accepted school suspension, submitted to drug tests, wrote an essay about their infractions, and attended a five-week re-education program in which they would admit that what they did was wrong and – for the girls — had learned what it meant to be a girl in today’s society. Three students refused the offer and Walczak leapt in to petition the federal district court to grant a temporary restraining order stopping further prosecution.One was about “sexting,” a phenomenon that I knew nothing about; the other two involved territorial issues and the question of where exactly school rights and responsibilities began and ended.Most of the Jennings Fellows who were in the sexting session had not heard of Tunkhannock, PA (a former lumber town, population roughly 2000, in the northern part of the Keystone State) where the sexting students went to school.

And some of us over the age of 30, still trying to understand what (though we were soon to learn that it is the practice of sending sexually explicit photographs by cell phone – and that lots of kids were doing it, including even in rural Pennsylvania).

So, as we learned, the day came when school officials in Tunkhannock learned that students were sending sexually explicit pictures – of other students — to each other by cell phone.