US District Court, Middle District
Witold Walczak, Sara Rose, and Valerie Burch (ACLU of Pennsylvania); Seth Kreimer (University of Pennsylvania School of Law)
The American Civil Liberties Union of Pennsylvania filed a lawsuit in March 2009 against the Wyoming County district attorney for threatening three high school girls with child pornography charges over digital photos in which they appear topless or in their underwear. The district attorney has demanded that in order to avoid the charges, the girls be placed on probation, participate in a five-week re-education program and be subject to random drug testing. The photos were among several discovered by Tunkhannock School District officials on students' cell phones.
At issue in this case are two photos depicting three teenage girls. One shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym used to protect the girl's real identity) standing outside a shower with a bath towel wrapped around her body beneath her breasts. Neither of the two photos depicts sexual activity or reveals anything below the waist.
The district attorney has asserted that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed. The district attorney has not, however, threatened to charge the individuals who distributed the photos.
Judge James Munley granted the ACLU's motion for a temporary restraining order on March 30, 2009. A copy of the order is available here.
On March 17, 2010, the Third Circuit Court of Appeals ruled that the prosecutor could not charge our clients based on the fact that they appeared in the photos.