825 F. Supp. 2d 905
N.D. Ohio2011Background
- Boland morphed innocent images of minors into sexually explicit images to illustrate difficulty of distinguishing real from virtual child pornography in criminal defenses.
- Images were created in early 2004 and shown in Ohio and Oklahoma court proceedings; morphed images were used in defense against child pornography charges.
- Congress criminalized such morphed images under 18 U.S.C. § 2256(8)(C); Boland acknowledged violating 18 U.S.C. § 2252A(a)(5)(B).
- Boland entered a pretrial diversion agreement (April 2007) with a settlement requiring a public apology; a disclaimer acknowledged the images violated federal law.
- In 2007–2009, minors and guardians filed suit under 18 U.S.C. §§ 2252A(f) and 2255 for civil damages; the district court granted summary judgment to Boland on federal claims, the Sixth Circuit reversed and remanded for issues including aggrieved status and personal injury.
- On remand, the court considers whether plaintiffs are “persons aggrieved” and whether minors suffered “personal injury,” and addresses First and Sixth Amendment challenges to the statutes; the court now grants summary judgment for plaintiffs and awards $300,000 total damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are minors "aggrieved" under §2252A(f) and have they suffered personal injury under §2255? | Minors are aggrieved and harmed even if unseen or unaware of images. | No aggrieved status or personal injury given lack of awareness and stipulated damages. | Minors are aggrieved and have suffered personal injury. |
| Does morphed child pornography fall outside First Amendment protection under §2256(8)(C)? | Morphed images implicate real minors and are not protected. | The statutes should not chill defense-friendly expressive methods. | Morhed child pornography is not protected; §2256(8)(C) constitutional as applied. |
| Do civil remedies for morphed child pornography violate the First or Sixth Amendment as applied to experts? | Civil penalties are proper; First/Sixth amendments do not bar damages. | Constitutional limits prevent extending liability to expert testimony. | Civil remedies do not violate First or Sixth Amendment as applied. |
| Is Boland entitled to Sixth Amendment immunity or defense-rights for morphing images in presenting a defense? | No immunity; cannot justify creating new child pornography as defense. | Constitutional right to effective defense would be undermined without immunity. | Sixth Amendment defense does not justify morphing new child pornography; no immunity. |
Key Cases Cited
- United States v. Bach, 400 F.3d 631 (8th Cir. 2005) (morphed images can harm identifiable minors and are within federal reach)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (virtual child pornography protected to limited extent; morphed images implicate real minors)
- United States v. Hotaling, 634 F.3d 725 (2d Cir. 2011) (morhed images not protected; harm begins at creation)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (state interest in protecting minors supports child pornography prohibitions)
- United States v. Loehr, 966 F.2d 201 (6th Cir. 1992) (statutory interpretation guidance)