The Price Point of Challenging Bad Law
As much as people think lawyers should be able to stand up in court and expound on any point that serves their cause, the reality is that we are limited by this quaint concept called evidence. Evidence is stuff that comes from things that a judge accepts as being sufficiently reliable to submit to the factfinder, or the words of a sworn witness.
When the point requires a witness to offer an opinion or example to make or clarify a point, the witness has to be determined to possess sufficient expertise to be worthy of expressing an opinion. Contrary to public perception, everybody is not entitled to an opinion in a courtroom. You have to know something first, unless you work in law enforcement, in which case expertise in all things necessary to convict is assumed. It's harder for the defense.
Ohio lawyer Dean Boland was an expert witness in child porn cases. Why, and what qualified him, isn't entirely clear, but he was. From Wired:
Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.
Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.
Usually, evidence prepared for court is immune from liability, civil or criminal, provided it's properly related to an action. Otherwise, it would be impossible to perform basic functions, such as playing child porn to a jury in order to prove the basis of a charge against a defendant, whereas playing it under other circumstances would be criminal. One would think the same true of Boland's mock-ups, used only in his expert testimony. Apparently not.
As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio, even though his exhibits helped clear at least one client of child-porn-related allegations. Now, a federal appeals court is upholding a $300,000 verdict in a lawsuit brought by the parents of two of the girls whose images Boland doctored.
And the Sixth Circuit upheld this award despite the fact that the images were never seen by anyone outside of a courtroom, and the child models (and their parents) in the stock photos never knew about it until the FBI paid them a visit to inform them.
Boland argued that he was immune from such a lawsuit because, among other reasons, he’d created the images for use in court, never distributed them, and that the First Amendment protected him.
But the court ruled that it was immaterial that Boland never displayed the images outside of court and never transmitted them electronically.
“The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the protections of the First Amendment,” the appeals court ruled.
It remains far beyond my comprehension how any person finds child porn titillating. It is fundamentally disgusting and repulsive. Yet, overbroad laws, even in the realm of child porn, must be addressed, making this perhaps the only justifiable basis for the creation of fake child porn, so show how easily a porn can be manufactured that doesn't involve any sexual conduct by a child.
Given that Boland was prosecuted (even though it resulted in a deferred prosecution) and held civilly liable for damages, what is the likelihood of anyone being willing to take the witness stand in the challenge to a vague and overbroad law? And if they don't take the stand, there is no evidence upon which to argue the cause.
In upholding the damage award, the 6th Circuit offered this rationale:
In today’s digital world, any image is “primed for entry into the distribution chain” of underground child pornographers. Hotaling, 634 F.3d at 730 (citing Osborne v. Ohio, 495 U.S. 103, 110 (1990)). Even if Doe and Roe never see the images, the specter of pornographic images will cause them “continuing harm by haunting [them] in years to come.” Osborne, 495 U.S. at 111. As a result, it is immaterial that Boland never displayed these images outside of a courtroom and never transmitted them electronically.
The "specter"? Specter is a scary word, but meaningless. How will it harm them? How will it haunt them? The children in the images Boland used would never have known had the FBI not knocked on their parents' doors and told them. No one, outside of the courtroom, would have ever seen the simulated images but for the FBI flashing them to the parents. If there is a specter here, it's wearing an FBI jacket. If anything haunts these parents and children, it happened at the hand of the FBI.
Should Boland have created these simulated child porn images at all? The fact is that it's enormously more powerful to make a point through physical examples, images, then just words. The effectiveness of Boland's testimony was certainly far greater because he could show, not just tell, his point.
Was it fair to the two innocent child models of the stock images used to create simulated porn? No. Perhaps he could have gotten images from someone with permission, or used his own children's pictures for that matter. The children in the stock images didn't ask to become part of Boland's testimony, and the idea that their images were morphed into child porn is, well, deeply disturbing at best. So it was a poor choice.
But was it worthy of criminal or civil liability? As long as the images never made their way from the well of the courtroom to, well, anywhere else in the world, then the answer has to be no. Even though it was a bad move, no one was harmed by it, and no damages were suffered. Indeed, more suffering ensued from the FBI's conduct than Boland's.
And yet, the next time the defense needs an expert witness in a case involving child porn, what are the chances that anyone will be willing to take the risk, or able to provide sufficiently effective testimony to make this nuanced legal point? Unless they are prepared to pay up $150,000 per child, slim. Slim, indeed.