A federal appeals court has approved a $300,000 award against an Ohio lawyer rejecting the attorney's arguments that he had a First Amendment right to morph stock photos into child pornography as part of a defense trial exhibit and that no one was harmed by his doing so.
Dean Boland was trying to show that overbroad laws against child pornography could entrap a defendant who didn't know whether the images were real or fake. But he wound up in trouble himself under a federal law that prohibits possession of images "created, adapted or modified" to depict identifiable minors in explicit sexual conduct, Reuters reports.
In the exhibit, Boland showed the jury "before" and "after" photos, including a stock image of a child eating a doughnut that he replaced with a penis. The exhibits would have been legal, under federal law, if they were entirely computer-generated or manipulated photos of adults, the Cincinnati-based 6th U.S. Circuit Court of Appeals explained in its Friday opinion (PDF).
To avoid being federally prosecuted, Boland OK'd a diversion agreement in which he admitted creating and possessing child pornography and apologized in the Cleveland Bar Journal. However, he contested the damages sought in a 2007 civil lawsuit by the parents of two child in the stock photos he used, arguing that they hadn't been hurt by images that were shown only in court and never electronically circulated.
The appellate panel disagreed. Upholding the award of $300,000 in damages under federal child pornography law that provides for such compensation and comparing the damage done by such images to the damage done by defamation, it said that injury to reputation and emotional well-being results.
"When he created morphed images, he intended to help criminal defendants, not harm innocent children," wrote Judge Jeffrey Sutton of Boland. "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."
Boland did not respond to requests for comment from the news agency.
