Ohio attorney creates fake child porn for case, now must pay $300,000

He altered pics of girls to be explicit in arguing against "overbroad" law.

by Cyrus Farivar

In case it wasn’t clear, you can definitely be busted for digitally manipulating photographs to make them look like child pornography—or as it’s sometimes called, child abuse imagery. And even if it wasn’t against the law, it’s certainly a terrible idea. Still, that didn’t stop an Ohio lawyer and former state prosecutor—who has often been called upon as an expert witness to testify that child porn laws are so overbroad that they cover fictional, digitally altered photos—from doctoring up his own.

On Friday, the United States Court of Appeals for the Sixth Circuit ruled (PDF) in favor of a district court in Ohio that had previously found Dean Boland, a self-described "qualified computer expert," liable to pay $300,000 to the families of the two girls that brought suit against him. Boland did not respond to Ars' requests for comment.

In 2004 and 2005, Boland had previously purchased stock images of the two girls, then five- and six-years-old, and digitally altered them to make them sexually explicit. In one case, Boland chose a photo of a six-year-old girl eating a donut and changed it to make it appear that she was performing oral sex on an adult man. In the other, according to the Sixth Circuit’s decision, he put "six-year-old Jane Doe’s face onto the body of a nude woman performing sexual acts with two men."

Boland used those images as part of a state court case in Ohio and a federal case in Oklahoma, where he was an attorney defending clients with child pornography charges. In the Ohio and Oklahoma cases, Boland used his created images to argue that it was "impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor."

The FBI became aware that Boland had created the explicit images for use in court, at which point they investigated possible child pornography charges. By 2007, the parents of the girls in question filed a civil lawsuit under a federal law that allows them to pursue monetary damages from the perpetrators. Last year, a federal district judge awarded the families $300,000, a decision that Boland appealed. That decision was affirmed Friday by the Sixth Circuit.

In his defense, the Ohio attorney argued that he was immune from a civil suit because he only created the images for use in court, never distributed them beyond the court room, and was protected by the First Amendment’s freedom of expression provision. The court obviously disagreed—frankly, we're a bit surprised that Boland would argue the First Amendment, given that obscene speech is not protected.

In its decision, the court wrote (PDF) that creating these images 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," they wrote. "If he felt compelled to make his point with pornography, he could have used images of adults or virtual children. Instead, he chose an option Congress explicitly forbade: morphed images of real children in sexually explicit scenes. That choice was not protected by the First Amendment, and the children therefore are entitled to the relief Congress offered them."