A case out of Ohio raises in my view some highly disturbing questions on the expanding reach of pornography laws. The Sixth Circuit has upheld a $300,000 award against an Ohio lawyer for his use of a trial exhibit in a child pornography case. Dean Boland wanted to show how an innocent picture can be converted into a pornographic picture without actually causing a child to engage in the displayed conduct. In order to avoid federal prosecution, Boland had to apologize publicly and admit to possession for child pornography. He was then hit with the damage award from the featured children despite his statement in court that these children did not participate in the depicted acts.

Here is how the court described the underlying facts:

In February 2004, Dean Boland downloaded images of two identifiable children, given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation, from a stock photography website. See Doe v. Boland, 630 F.3d 491, 493 (6th Cir. 2011). Boland digitally manipulated (“morphed”) the photographs to make it look like the children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating a doughnut; Boland replaced the doughnut with a penis. In another, he placed six-year- old Jane Doe’s face onto the body of a nude woman performing sexual acts with two men. In March and April 2004, Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving child pornography. He displayed “before-and-after” versions of the images, testifying that it would be “impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor.” R. 77-2 at 119.
Boland’s testimony caught the attention of the FBI’s Cleveland office. Federal agents searched his home and seized several files from his computer. Boland, 630 F.3d at 494. In April 2007, Boland entered a pre-trial diversion agreement with the U.S. Attorney’s Office for the Northern District of Ohio, in which he admitted violating 18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology in the Cleveland Bar Journal, stating, “I do recognize that such images violate federal law.” R. 73-1 at 12.

Before getting to the lawsuit by the parents of the depicted children, my primary concern rests with the federal investigation and threatened prosecution against Boland. This is an attorney who was clearly using the images not to arouse but to educate the viewers. It was also a relevant exhibit that was allowed by a court.

I fail to see such a use of morphed images can be deemed a possible crime. Indeed, many civil libertarians have argued that morphed images cannot constitute children pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two provisions of the Child Pornography Prevention Act of 1996 as an abridgment of “the freedom to engage in a substantial amount of lawful speech.” The Court noted that “CPPA prohibits speech despite its serious literary, artistic, political, or scientific value.” This case might add “legal value.” Normally, you are privileged in terms of defamation for what is said in court. However, even if the same would apply to the display, the FBI simply raided his home and computer. The opinion does not state that there was any use of these images other than to make his legal point.

After being alerted to the display, the Jane Roes and their guardians filed this lawsuit in 2007 against Boland under 18 U.S.C. §§ 2252A(f) and 2255. Section 2252A(f) provides a civil remedy to “[a]ny person aggrieved” by child pornography, while § 2255 provides a civil remedy of at least $150,000 in damages to minor victims who suffer a “personal injury” from various sex crimes. Once again, there is substantial question of the “sex crime” here. Yet, the district court avoided that question by ruling that two civil remedy statutes exempt expert witnesses from liability. The Sixth Circuit reversed and held that the laws contain no such exemptions or any other exemption that would cover Boland.

Section 2255 allows “[a]ny person who, while a minor, was a victim” of a variety of sex crimes “and who suffers personal injury as a result . . . regardless of whether the injury occurred while such person was a minor” to sue and “recover the actual damages such person sustains.” Since Boland admitted to the crime to avoid prosecution, it locked him into the case.

Judge Jeffrey Sutton brushed aside the fact that the lawyer did this to make a legal point in court through a relevant exhibit: “When he created morphed images, he intended to help criminal defendants, not harm innocent children Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”

The result is a breathtaking award for a trial exhibit not seen outside of the case where the children were expressly stated as not participating in what the images showed.

I fail to see why such a case would motivate the FBI when we are awash with child pornography that needs to be prosecuted. There is also the concern that the FBI took such action against a lawyer or expert who appeared in opposition to a federal prosecution. I have great qualms over the implications of this case for the practice of law. What do you think?

Here is the underlying opinion: 12a0382p-06

Source: ABA Journal