A federal judge in Pennsylvania has granted a temporary restraining order to prevent a district attorney from charging three teenage girls with the production of child pornography for allowing someone to take photos of them in states of undress.

In his ruling (.pdf) the judge seemed to agree with the plaintiffs that the images in question do not qualify as child pornography.

At issue in the case are photos seized from student cellphones last year by officials of the Tunkhannock School District in Wyoming County, Pennsylvania. The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called "sexting" and has resulted in teens being arrested in a number of states under child porn production, distribution and possession charges.

The Tunkhannock case involves two photos depicting the three girls. One photo of Marissa Miller and Grace Kelly shows them two years ago at age 13 lying side by side while one talks on the phone and the other makes a peace sign with her fingers, according to the ACLU complaint. The two are photographed from the waist up and are wearing white opaque bras. A second photo shows a girl referred to in the court document as "Jane Doe" photographed outside a shower with a towel wrapped around her waist. Her breasts are bared.

Wyoming County District Attorney George Skumanick, Jr., had threatened to charge the girls with being accomplices to the production of child pornography unless they agreed to six-month probation, drug-testing and participation in a five-week educational program to discuss why what they did was wrong.

The American Civil Liberties Union of Pennsylvania sued the district attorney on behalf of the teens and their parents on grounds that the DA was violating their civil rights. The plaintiffs said the images didn't qualify as child pornography under Pennsylvania's laws and therefore the prosecutor was prohibiting their free expression to take photos of themselves. They also claimed the attempt to force the parents to put the girls in an educational program violated their Fourteenth Amendment rights.

U.S. District Court Judge James M. Munley granted the temporary restraining order on grounds that the plaintiffs stand a reasonable chance of winning their suit against the prosecutor. The judge didn't comment on the merits of their claims against the prosecutor other than to say that the "plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts."

"We are grateful the judge recognized that prosecuting our clients for non-sexually explicit photographs raises serious constitutional questions," said Witold Walczack, legal director for the ACLU of Pennsylvania, in a statement. "This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting.”

Walczack told Threat Level that during the hearing the judge had looked at the two photos in question and asked the lawyers representing the defendant, "I just want to be clear that these are the two photos that are illegal?"

"He had sort of this incredulous tone in his voice," Walczack said. "I think there is an important message for prosecutors that they need to be careful about threatening child porn charges when you don't really have child porn."

Skumanick was not available for comment. The district attorney is up for re-election in May.

A hearing to address the plaintiffs' request for a preliminary injunction will be held June 2.

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