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Jane Doe and Jane Roe, C/O Their Guardians and Next Friends v. Dean Boland

November 9, 2012

JANE DOE AND JANE ROE, C/O THEIR GUARDIANS AND NEXT FRIENDS, PLAINTIFFS-APPELLEES, UNITED STATES OF AMERICA, INTERESTED PARTY-INTERVENOR,
v.
DEAN BOLAND, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:07-cv-2787--Dan A. Polster, District Judge.

The opinion of the court was delivered by: Sutton, Circuit Judge.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

Argued: October 10, 2012

Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge*fn1

OPINION

To help defendants resist child-pornography charges, technology expert and lawyer Dean Boland 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 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 granted summary judgment to the parents and awarded them $300,000 in damages. We affirm.

I.

In February 2004, Dean Boland downloaded images of two identifiable children, given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation, from a stock photography website. See Doe v. Boland, 630 F.3d 491, 493 (6th Cir. 2011). Boland digitally manipulated ("morphed") the photographs to make it look like the children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating a doughnut; Boland replaced the doughnut with a penis. In another, he placed six-year- old Jane Doe's face onto the body of a nude woman performing sexual acts with two men. In March and April 2004, Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving child pornography. He displayed "before-and-after" versions of the images, testifying that it would be "impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor." R. 77-2 at 119.

Boland's testimony caught the attention of the FBI's Cleveland office. Federal agents searched his home and seized several files from his computer. Boland, 630 F.3d at 494. In April 2007, Boland entered a pre-trial diversion agreement with the U.S. Attorney's Office for the Northern District of Ohio, in which he admitted violating 18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a "visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct." R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology in the Cleveland Bar Journal, stating, "I do recognize that such images violate federal law." R. 73-1 at 12.

In September 2007, Jane Doe, Jane Roe and their guardians filed this lawsuit against Boland under 18 U.S.C. §§ 2252A(f) and 2255. Section 2252A(f) provides a civil remedy to "[a]ny person aggrieved" by child pornography, while § 2255 provides a civil remedy of at least $150,000 in damages to minor victims who suffer a "personal injury" from various sex crimes.

The district court granted summary judgment to Boland on the ground that these two civil remedy statutes exempt expert witnesses from liability. We reversed, holding that the laws contain no such exemptions or any other exemption that would cover Boland. Boland, 630 F.3d at 493. On remand, the district court ruled for the plaintiffs and awarded $150,000 to Doe and $150,000 to Roe.

II.

To resolve Boland's appeal, we must answer three questions: (1) did the plaintiffs meet the requirements for obtaining relief under § 2255; (2) does the definition of morphed images as "child pornography" in § 2256(8)(C) violate the First Amendment as applied to Boland's conduct; and (3) ...


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