Sixth Circuit affirms restitution award against expert witness who morphed stock images into CP for jury exhibit

In Doe v. Boland, No. 11-4237 (6th Cir. 2012), the Sixth Circuit held that an expert witness who morphed images of children into child pornography in order to show the ease of such editing to a jury was guilty of possession of child pornography. As such, he was ordered to pay restitution of $300,000 to the victims.

The defendant had downloaded images of two children from a stock photo website and edited the images "to make it look like the children were engaged in sex acts" as part of his preparation for testimony at a child pornography trial. His actual intent was to show the jury how easily such images could be modified and to argue that the defendants on trial may not have known the pornographic images they were viewing were actually child pornography.

After his presentation of the images, the FBI began an investigation, and he was charged with possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). The district court held that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Thus, damages of $150,000 were awarded to each of the two victims. (Read our earlier post about this decision here.)

The Sixth Circuit first held that the § 2252A(f) action for damages allows a court to award "compensatory and punitive damages" and does not require an "exact amount of ... damages." Therefore, the award of $300,000 was permissible.

Secondly, the production of the images was not protected by the First Amendment, and it was immaterial that the images were "never displayed ... outside of a courtroom" or transmitted electronically. "The creation and initial publication of the images itself harmed ... [the children], and that is enough to remove Boland’s actions from the protections of the First Amendment."

In conclusion, the court wrote:

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.... Nor was this Boland’s only option for trying to help his clients.  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.  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.

Thus, the trial court's decision was affirmed. The case was first heard by the Sixth Circuit in 2011. In that earlier decision, the appeals court reversed and remanded a trial court decision holding that Congress intended for there to be an exception for expert witnesses.