Attorney Must Pay Damages for 'Morphed' Child Porn Images - U.S. Sixth Circuit
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Attorney Must Pay Damages for 'Morphed' Child Porn Images

We all know that an attorney is supposed zealously represent his client. Dean Boland was just too zealous an advocate for his own good.

In an attempt to help defendants resist child-pornography charges, Boland — a technology expert and lawyer — downloaded images of children from a stock photography website and digitally imposed the children’s faces onto the bodies of adults performing sex acts. Boland’s aim was to show the trial court that the defendants may not have known they were viewing child pornography.

When the parents of the children involved found out about the images, they sued Boland under the civil remedy provisions of two federal child-pornography statutes. The district court awarded the parents a total of $300,000 in damages. Last week, the Sixth Circuit Court of Appeals affirmed that award.

The child pornography civil remedy provisions allow "any 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." Any person who meets that description "shall be deemed to have sustained damages of no less than $150,000 in value."

Boland admitted that he violated federal law by morphing the plaintiffs' images into pornography. That act, Boland also conceded, makes Doe and Roe "minor" "victims." The question, then, was whether the plaintiffs suffered resulting "personal injury." The appellate court concluded that they did because, "like a defamatory statement," pornography injures a child's "reputation and emotional well-being" and violates "the individual interest in avoiding disclosure of personal matters."

The court also rejected Boland's argument that the damages award ran afoul of the First Amendment, noting that obscenity, defamation, fraud, incitement and solicitation of crime are all examples of communication for which the speaker must take responsibility and from which the First Amendment offers no sanctuary. The Supreme Court has held that child pornography is the same because the "evil" of child pornography "so overwhelmingly outweighs the expressive interests, if any, at stake" in this form of communication that it lies categorically beyond constitutional protection.

Since the statute under which Boland was ordered to pay damages defines "child pornography" to include morphed images, and the creation and initial publication of the images harmed Jane Doe and Jane Roe, the Sixth Circuit found that Boland's actions were not entitled to First Amendment protection.

While $300,000 may seem like an excessive penalty for images that were created and displayed solely for the purpose of litigation, the appellate court observed that simulating child pornography was not Boland's only option: He could have shown the difficulty of distinguishing real pornography from virtual images by transforming the face of an adult onto another, or inserting a child's image into an innocent scene. Instead, he chose an option Congress explicitly forbade.

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