* Appeals court says images not protected by First Amendment
* Finds children suffered reputational, emotional harm
Nov 9 An Ohio lawyer who created sexually
explicit images of children as part of a legal defense in child
pornography trials must pay the children's parents $300,000, a
federal appeals court ruled on Friday.
Dean Boland, the lawyer at the center of the case, did not
respond to requests for comment.
In 2004, Boland was hired as an expert witness by criminal
defense lawyers to testify at three separate criminal
proceedings for defendants on trial for possessing child
In an effort to argue that pornography laws were too broad
because defendants had no way of knowing whether photos were
real or fake, Boland downloaded images of two children from a
stock photo website and digitally manipulated them so the minors
appeared to be engaged in sexual acts, according to court
documents. In one, a child was eating a doughnut, which Boland
replaced with a penis. In another, he transposed a child's face
onto the body of a nude woman performing sexual acts with two
He then used the before-and-after pictures at trial to
demonstrate the difficulty of telling the difference between
real and digitally morphed images.
Federal child pornography law bans the possession of images
"created, adapted or modified" to show an identifiable minor
engaging in sexually explicit conduct. However, it does not ban
entirely computer-generated child pornography.
After the Federal Bureau of Investigation learned about
Boland's testimony, federal agents searched Boland's home and
seized his files. To avoid being criminally prosecuted, Boland
entered a diversion agreement in which he admitted to creating
and possessing child pornography in violation of federal law. He
also published an apology in the Cleveland Bar Journal.
Despite his admission, he defended his right to use the
images in court, even filing a lawsuit against the federal
government, which was ultimately dismissed.
In 2007, the parents of the two children in the original
stock photos sued Boland under federal child pornography laws
that allow the minor victims of child pornography to recover
A federal judge initially dismissed the lawsuit, finding
that the law shielded expert witnesses from liability. But the
6th U.S. Circuit Court of Appeals in Cincinnati last year
disagreed, sending the case back to the district judge, who
awarded $150,000 to each child.
On appeal for the second time, Boland argued that the
children did not suffer any injury because he never displayed
the images outside a courtroom and never transmitted them
electronically. He also said the law violated his First
Amendment rights to create and use the images to defend clients
A unanimous, three-judge panel of the 6th Circuit rejected
those arguments on Friday, affirming the damages award.
"When he created morphed images, he intended to help
criminal defendants, not harm innocent children," Judge Jeffrey
Sutton wrote. "Yet his actions did harm children, and Congress
has shown that it means business in addressing this problem by
creating sizeable damages awards for victims of this conduct."
The existence of the images hurt the children's reputation
and emotional wellbeing, the court found.
The court also noted that Boland could have made his point
another way, by manipulating the photos of real adults or by
using pictures of children generated entirely by computer.
Instead, he chose the option Congress prohibited: He displayed
images of real children modified to look like they were engaged
in sexual activity.
A lawyer for the parents, Jonathan Rosenbaum, did not
respond to a request for comment.
Boland has also been in the news recently because for a time
he represented Paul Ceglia, a former wood-pellet salesman who
sued Facebook Inc for a 50 percent cut of the company,
claiming he signed a contract with founder Mark Zuckerberg.
Federal prosecutors in October charged Ceglia with forging
documents central to the suit. Days later, Boland asked to
withdraw from the case for personal reasons.
The child pornography case is Doe et al v. Boland, 6th U.S.
Circuit Court of Appeals, No. 11-4237.