Dean Boland is a lawyer who specializes in technology issues. He was an expert witness for the defense in a child pornography case, United States v. Shreck. Part of the argument was that the defendant couldn’t have “knowingly” viewed child porn because it’s impossible to distinguish images of actual children having actual sex from a good Photoshop job. To prove his point, Boland created some synthetic child porn: he took a stock photo of a 5-year-old girl eating a doughnut, deleted the doughnut, and replaced it with a penis.
Bad move. Last month, the Sixth Circuit allowed a lawsuit against Boland for violating the federal child pornography laws to go forward. In the course of trying to show that his client didn’t possess child pornography, Boland wound up possessing some himself. He pleaded guilty to criminal charges, and opened himself up to civil lawsuits.
It’s hard to feel much sympathy for Boland himself. The lawsuit was brought by the parents of the children whose photos he used. And, as the court points out, he could have used photos of adults, or used Photoshop to change one innocent picture of a kid into a different picture of a kid: replaced the doughnut with a scone, for example. He did something stupid, which understandably caused serious distress to the children’s’ parents.
Still, this case—and others like it—are troubling. The trial court had tried to let Boland off the hook because he was using the fake child pornography as part of Shreck’s defense. The appeals court said no dice: you can’t commit one crime in order to help in the defense of another:
Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial. Or individuals on trial for counterfeiting or manufacturing drugs might be able to make more of the contraband as part of a defense.
That sounds reasonable. But it comes dangerously close to preventing a defendant from demonstrating that what he did was not a crime at all. In a 2002 case, Ashcroft v. Free Speech Coalition, the Supreme Court held that a federal law on “virtual child pornography” violated the First Amendment. The law in question any “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The problem for the Court was the “appears to be” prong: the law prohibited pornography produced using young-looking adults or entirely with computers. But the principal reason that child pornography is treated as contraband that’s never legal to possess is because of the serious harm it inflicts on children who are forced to participate in it. If the images were produced without the participation of any actual children, that rationale goes away.
Back to Boland. If your expert witness will be thrown in jail himself for trying to help you prove that you were looking at virtual child porn rather than actual child porn, there goes much of your practical ability to defend yourself. And the Sixth Circuit’ rationale in the Roberto hypothetical—you’re not allowed to commit one crime to defend against another—doesn’t apply if the expert is also dealing in wholly virtual pornography. Saying that Boland possessed child pornography comes dangerously close to circularity; what is or is not constitutionally punishable “child pornography” is the very question the defense centered on.
I think in the end that the prosecution and parents’ lawsuit against Boland are constitutionally permissible. One of the harms the Supreme Court cited from actual child pornography is that “each new publication of the speech would cause new injury to the child’s reputation and emotional well-being.” That applies to Boland, who used photos of real children. They weren’t actually engaged in sexual acts, but he made it appear that they were. It’s less severe a harm to the children, but it’s one the Supreme Court has recognized, and one that parents are quite right to be upset about.
My point is really that we’re on treacherous ground here. Child pornography is, as Eric Goldman describes it, legally “toxic”: even one download is an incurable crime. Unfortunately, it’s also toxic to our legal system, which sometimes seems to suspend all of the ordinary rules when a child pornography prosecution is involved. The War on Child Porn may be the Internet’s version of the War on Drugs or the War on Terror: a noble-sounding cause that unhinges otherwise sane people and undermines important civil rights.