Dean Boland v. Eric Holder, Jr.
2012 U.S. App. LEXIS 12787
6th Cir.2012Background
- Boland created and possessed child pornography by combining benign images of minors with adult sexual imagery; federal law criminalizes such depictions, while Ohio law provides a limited bona fide purpose exception.
- Boland’s conduct occurred in the context of serving as defense attorney/expert witness in Ohio and federal courts.
- Boland signed a Pre-Trial Diversion Agreement after FBI seizure to avoid federal prosecution, under which he admitted creating/possessing child pornography.
- Boland seeks a broad declaratory judgment/injunction preventing federal prosecutions under 13 federal statutes if related to Ohio Child Pornography Statutes (or court proceedings).
- District court dismissed for lack of standing/viable legal theory; only 18 U.S.C. §§ 2252 and 2252A remain at issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption between federal and Ohio child pornography laws | Boland says Ohio exception defeats federal prohibition | Federal law has no preemption and applies regardless of Ohio exception | No preemption shield; conflict not shown; federal statutes apply where overlapping conduct occurs |
| First Amendment protection for defense attorneys/experts | First Amendment protects creation/possession for judicial use | No protection for child pornography in court contexts | No First Amendment protection for such conduct in the courtroom; Ferber context does not apply |
| Standing under Sixth Amendment for future defendants | Boland has standing to challenge potential Sixth Amendment harms | No injury to Boland; future defendants have standing but Boland lacks | Boland lacks standing to raise Sixth Amendment claims; future defendants may raise on their own |
Key Cases Cited
- Doe v. Boland, 630 F.3d 491 (6th Cir. 2011) (panel held expert-witness exemption not read into text; scope not raised here)
- Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (Sup. Ct. 1963) (federal-state overlap and objectives guidance; state law not obstacle to federal goals)
- New York v. Ferber, 458 U.S. 747 (Sup. Ct. 1982) (child pornography generally unprotected by First Amendment; context matters)
- Kowalski v. Tesmer, 543 U.S. 125 (S. Ct. 2004) (standing requires close relationship and hindrance to protect rights)
- U.S. v. Paull, 551 F.3d 516 (6th Cir. 2009) (criminal defendant standing to challenge violations of rights)