Tuesday, November 13, 2012, by Amanda Jones
A lawyer in Ohio must pay $300,000 to the families of two girls whose picture he used to create images that looked like child pornography. Dean Boland, an attorney and self-proclaimed computer expert, used the images of two children to create sexually explicit photos that he subsequently presented while testifying as an expert witness. His reasoning for creating the photos was to show the over breadth (in his opinion) of the current child pornography laws.
Boland maintained there was no harm to the children, stating that the parents are “insisting I owe them hundreds of thousands of dollars for harm these children don’t even know is going on,” the court disagreed.
According to the opinion from the Sixth Circuit, the incident began in 2004 when Boland downloaded images of two identifiable minor females, ages five and six. Boland then, using his computer skills, morphed the pictures to show the two girls in sexually explicit situations. In one picture, the minor’s face was morphed onto the face of an adult woman performing sexual acts with two men. In the second photo, the original image showed the young girl eating a doughnut and Boland altered the photo so that the doughnut appeared to be a penis.
Boland then used these images on at least three occasions when giving expert testimony related to child pornography. Boland would show the original, innocent images of the young girls and then compared these images to the digitally altered photos. He used this method to support his testimony 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.”
Regardless of his motive, the FBI caught wind of what Boland was doing and took action. Boland’s house was searched and files were seized from his computer, leading to his admission of violating a federal law which prohibits a person from knowingly possessing any visual depiction which is “or appears to be, of a minor engaging in sexually explicit conduct.”
Subsequently, the families of the two minor females filed civil suit against Boland for damages related to the use of the minors’ photos. While Boland maintained there was no harm to the children, stating that the parents are “insisting I owe them hundreds of thousands of dollars for harm these children don’t even know is going on,” the court disagreed. The Sixth Circuit affirmed the district court’s determination of damages, relying on 18 U.S.C. §§ 2252A(f) and 2255, awarding each family $150,000, the minimum amount set forth by the statute.
This decision is not a surprise. In New York v. Ferber, the Supreme Court ruled that child pornography is not a protected form of speech under the First Amendment. The Court reasoned that States have various interests in an outright prohibition of child pornography. The most pressing interest is found in “safeguarding the physical and psychological well-being of a minor.” Child pornography has subsequently been addressed in Osborne v. Ohio and Ashcroft v. Free Speech Coalition, both cases maintaining that child pornography which implicates the well-being of minor children is strictly prohibited and not protected under the First Amendment.
As noted by the Sixth Circuit Court, Boland had various other manners in which he could have gone about supporting his expert testimony other than digitally altering the photos of the minor females. Boland could have employed the same compare-and-contrast technique using morphed adult photos, simply explaining that the same technique could be used with photos of minors. This attorney exercised extremely poor judgment in creating the sexuality explicit photos of two young girls.