A lawyer who digitally substituted two children’s faces on photos of adults performing sex acts to make a point in a pornography case must pay their parents $300,000 in damages, the U.S. Court of Appeals for the Sixth Circuit has ruled.

On November 9, a unanimous panel of the court affirmed a summary judgment and damages award for the plaintiffs against Dean Boland, a Lakewood, Ohio, attorney and digital expert.

In February 2004, Boland downloaded the images of two children, who are referred to as Jane Doe and Jane Roe in the litigation, from a stock photography website. In March and April of that year, he used the images during expert testimony in two Ohio state court cases and a federal case in Oklahoma. According to the Sixth Circuit, "Boland’s aim was to show that the defendants may not have known they were viewing child pornography." Boland testified in those cases 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."

The FBI’s Cleveland office caught wind of Boland’s testimony and investigated. In April 2007, Boland entered a pretrial agreement with the U.S. Attorney’s Office for the Northern District of Ohio. In that agreement, he admitted violating a child pornography law by possessing an image modified to appear as if a minor is engaging in sexually explicit conduct. Boland also published an apology in the Cleveland Bar Journal.

Jane Doe, Jane Roe and their guardians sued Boland in September 2007. They sought damages under a civil remedy that provides at least $150,000 in damages to minors who suffer a "personal injury" from a sex crime.

In September 2009, Judge Dan Polster of the Northern District of Ohio granted Boland’s summary judgment motion on the ground that these two civil remedy statutes exempt expert witnesses from liability. Polster also denied the plaintiffs’ summary judgment motion on the federal claims and dismissed state law claims.

On January 2011, the Sixth Circuit unanimously reversed and held that the federal child pornography statute "contains no such exception" for expert witnesses. In October 2011, on remand, Polster ruled for the plaintiffs and awarded $150,000 to each minor defendant. Polster wrote that the damages award was not unfair because Boland "knew what he was doing, and he did not have to create child pornography to make his point in court as an expert witness." Boland appealed.

Judge Jeffrey Sutton wrote the recent opinion in Doe v. Boland, joined by judge Richard Allen Griffin and Judge William O. Bertelsman of the Eastern District of Kentucky, who sat on the case by designation. The three judges were the same judges who sat on the panel that ruled in the case in January 2011.

"This $300,000 award undoubtedly amounts to tough medicine for Boland. When he created morphed images, he intended to help criminal defendants, not harm innocent children. Yet his actions did harm children, and Congress has shown that it ‘means business’ in addressing this problem by creating sizeable damages awards for victims of this conduct," Sutton wrote.

He observed that the First Amendment does not protect "morphed" child pornography and that a lack of immunity for this kind of expert testimony does not violate the defendant’s Sixth Amendment rights: "[T]he Court concludes that a constitutionally effective defense to a child pornography charge does not include the right to victimize additional minors by creating new child pornography in the course of preparing and presenting a defense."

Sutton wrote that the minors are victims under child pornography law and that they suffered a personal injury that harms their "reputation and emotional well-being."

The laws Sutton cited entitle the victims to damages of $150,000 each. "In this instance, the plaintiffs became victims of Boland’s conduct at the same time that they suffered injuries, namely the moment Boland created the morphed images with their likenesses."

Sutton found that the district court did not erroneously award Doe and Roe the minimum statutory damages without proof of "actual damages," because a damages hearing could potentially increase the children’s suffering. Sutton determined that the damages award does not conflict with the First Amendment because "Doe and Roe were real victims with real injuries" and because the images have "relatively weak expressive value."

"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," Sutton wrote. He also rejected Boland’s argument that applying federal child pornography statutes to expert witness testimony violates the Sixth Amendment right to effective counsel of current and future litigants.

Neither Boland, who acted pro se, nor Jonathan Rosenbaum, an Elyria, Ohio, lawyer who represented the plaintiffs, responded to requests for comment.

The U.S. Department of Justice, which was an intervenor in the case, has no comment, said spokesman Charles Miller.

Sheri Qualters can be contacted at squalters@alm.com.