As if we needed yet another reminder, the United States Sixth Circuit Court of Appeals has “reminded” everyone once again that it is NEVER safe to possess child pornography – even for a “legal” purpose like an attorney or an attorney’s expert using it as an exhibit in court. On January 19, 2011, the Sixth Circuit reversed a ruling by a Federal District Court Judge in Ohio that an Ohio lawyer was not guilty of “creating” child pornography for use as exhibits in defending child porn charges in court.
The lawyer, Dean Boland, was working as an expert witness in a case in Cleveland, OH. While working as an expert in several Cleveland area criminal cases, Boland digitally “altered” several photo images in “child porn” to use as demonstrative evidence in court. As an example, in order to “prove” how hard it was to show knowledge by a defendant that an image is child pornography, Boland would take a photo of a child, and digitally put that child’s face in a photo on an adult’s body having sex.
Boland was charged in a federal indictment with “creating” child pornography for engaging in this practice. He was also sued civilly by the parents of the children whose images he “used” in his exhibits. An Ohio federal district court judge ruled that Ohio law protected Boland from both civil and criminal prosecution. But the Sixth Circuit reversed this ruling, and held that there is no “expert witness” exception to the federal laws on child pornography. This allowed the civil plaintiff’s to proceed forward with their lawsuits. The court wrote that “even when federal law allows participants in the criminal justice system to possess contraband, it does not allow the creation and possession of new contraband.” The court reasoned that instead of using the image of a child to demonstrate his point, “[Boland] could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.” The Sixth Circuit also cautioned that the federal government must closely supervise all child pornography used as an exhibit in litigation.
This ruling certainly limits the reach of the Supreme Court’s ruling re: virtual child pornography. Ashcroft v. The Free Speech Coalition (2002), 535 U.S. 234 (2002), involved virtual child pornography – I.e., child pornography not created with real children but rather with computers and animation. The U.S. Supreme Court ruled that you cannot prosecute that; virtual pornography is in effect a protected form of First Amendment speech. The Supreme Court specifically rejected arguments that virtual child pornography should be treated as indistinguishable from actual child pornography which is exempt from the protection of the First Amendment. The Court held:
In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children as were the materials in Ferber . . . . The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.
As the Supreme Court observed in Sable Communications of Ca., Inc. v. FCC 492 U.S. 115, 126, (1989), even “[s]exual expression which is indecent but not obscene is protected by the First Amendment.” Furthermore, the potential offensiveness of speech “does not justify its suppression.” Carey v. Population Services, Int’l 431 U.S. 678, 701 (1977).
Finally, in Reno v. American civil Liberties Union 521 U.S. 844, (1997), the Court held that the interest in protecting children from harmful matter does not have infinite scope:
But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not “reduc[e] the adult population … to … only what is fit for children.” Denver, 518 U.S., at 759, 116 S.Ct., at 2393 (internal quotation marks omitted) (quoting Sable, 492 U.S., at 128, 109 S.Ct., at 2837_2838). [FN40] “[R]egardless of the strength of the government’s interest” in protecting children, “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Bolger v. Young Drug Products Corp., 463 U.S. 60, 74_75, 103 S.Ct. 2875, 2884_2885, 77 L.Ed.2d 469 (1983).
Mark A. Satawa is a partner at Kirsch & Satawa, PC in Southfield, MI. He practices in the area of criminal defense, specializing in defending sex crimes, child molestation, internet stings, and child pornography. He is a contributing author in the book, INSIDE THE MINDS: STRATEGIES FOR DEFENDING INTERNET PORNOGRAPHY CASES (Aspatore 2008).