## Facts

- School officials found semi-nude and nude images of teenage girls on students’ cell phones, which had been traded among male students, and provided the phones to the county district attorney.
- The district attorney publicly warned that students involved with “inappropriate images of minors” could face prosecution under Pennsylvania child pornography and related statutes.
- The district attorney sent parents letters offering a choice: have the student attend a multi-week “education program” designed with outside organizations or face felony charges.
- The program included gender-specific content and required participating girls to write a report describing what they did, why it was wrong, who was harmed, and effects on the victim, school, and community.
- Three minor girls’ images were found on boys’ phones; for one (Nancy Doe), there was no evidence she possessed or distributed her image.
- Nancy Doe and her mother refused participation, objecting that the program imposed particular moral and gender-role views and compelled a written admission adopting those views.
- The district attorney stated refusal would result in prosecution; during appeal, he decided not to prosecute two of the girls, leaving only Nancy Doe under threat.
- The families sued under 42 U.S.C. § 1983 and obtained a preliminary injunction barring retaliatory prosecution based on refusal to attend the program.

## Issues

1. Whether the continuing threat to prosecute Nancy Doe, conditioned on refusal to attend the program, likely constituted unconstitutional retaliation against (a) parental rights to direct a child’s upbringing and moral education and (b) the minor’s First Amendment right against compelled speech.
2. Whether the appeal or request for injunctive relief became moot for any plaintiffs after the district attorney decided not to prosecute two minors.
3. Whether the requirements for a preliminary injunction were satisfied, including likelihood of success, irreparable harm, balance of harms, and public interest.

## Decision

- The Third Circuit affirmed the preliminary injunction as to Jane Doe and Nancy Doe.
- The court held they showed a likelihood of success on retaliation claims based on burdens to parental autonomy and compelled, viewpoint-specific expressive activity.
- The court treated the controversy as effectively moot for the other families because there was no continuing threat of prosecution against their daughters.
- The court agreed the remaining preliminary-injunction factors favored relief: threatened prosecution for exercising constitutional rights constituted irreparable harm, the injunction was limited to retaliatory prosecution, and protecting constitutional rights served the public interest.

## Legal Principles

- A prosecutor may not use threatened criminal prosecution to penalize or coerce the exercise of constitutional rights; such conduct can support a § 1983 retaliation claim.
- Parents have a substantive due process right to direct the upbringing and moral education of their children; coercing participation in a state-selected moral program can burden that right.
- The First Amendment protects the right not to speak; the state may not condition avoidance of prosecution on compelled statements or essays that require adopting a particular viewpoint.
- Preliminary injunctive relief may issue where plaintiffs show likely constitutional violations and irreparable harm from a credible, ongoing threat of enforcement, even when the injunction is tailored not to bar prosecutions supported by independent probable cause.

## Conclusion

The Third Circuit upheld an injunction preventing a district attorney from threatening felony prosecution to force a minor and her parent to accept a viewpoint-based counseling program and provide compelled admissions, finding a strong likelihood of unconstitutional retaliation and satisfied preliminary-injunction criteria.


Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010)