NYTimes: Prosecutors Gone Wild

The New York Times editorialized today about sexting:

Schools across the country are understandably concerned about students “sexting” — sending sexually suggestive photos and text messages by cellphone. But a Pennsylvania school district went too far when it referred several female students for criminal prosecution after their images showed up on other students’ phones and they refused to participate in an antisexting education program. A federal appeals court was right to rule last week that parents had the right to block the district attorney from prosecuting the girls.

In the fall of 2008, officials in the Tunkhannock Area School District discovered nude and seminude pictures of female students on cellphones belonging to other students. After they found out that male students had been exchanging these images, the officials turned the phones over to the district attorney to investigate.

The district attorney wrote to parents of at least 16 students, who either owned the confiscated phones or appeared in the photos, threatening to prosecute the students on child pornography charges. If the students enrolled in an education program covering sexual harassment, sexual violence and related issues, he said, they would not be charged.

The parents of three girls refused to enroll their daughters. The parents of one girl, who was photographed speaking on a phone in a white bra, said she was simply being a “goof ball.” Another girl was seen in a towel, looking like she had gotten out of the shower.

These parents sought a temporary restraining order to block the district attorney from bringing criminal charges against their daughters, which the court granted. The cases against two students were dropped and the United States Court of Appeals for the Third Circuit, in Philadelphia, has since upheld the lower court. It said the third student and her parents are likely to succeed with their constitutional claims.

The prosecutor’s threat to bring charges, the appeals court ruled, would be retaliation for the exercise of protected constitutional rights — the parents’ 14th Amendment right to parental autonomy, and the child’s First Amendment right against compelled speech. Students in the program are required to write about how their actions were wrong.

The court said the prosecutor was trying to retaliate, rather than simply enforce the law, because there was so little basis for believing the three students had engaged in illegal activity — that they ever possessed the images or were involved in transmitting them.

Schools have a strong interest in maintaining an appropriate learning environment, indeed a duty to do so. But as students use more — and more elaborate — forms of technology, school officials will need to do a better job of upholding decorum without creating felony prosecutions out of misbehavior that should be handled by parents.

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