Fictitious pornography ruling

[Pookie]

Guilty plea dismissed in case of fictitious pornography

Thursday, July 17, 2003 Posted: 3:25 PM EDT (1925 GMT)

COLUMBUS, Ohio (AP) -- A state appeals court on Thursday dismissed the guilty plea of a man imprisoned for writing fictitious stories of child torture and molestation.

Lawyers specializing in the First Amendment believe Brian Dalton was the first person in the United States successfully prosecuted for child pornography that involved writings, not images.

The 10th Ohio District Court of Appeals in Columbus ruled 3-0 to send the case of Dalton back to Franklin County Common Pleas Court.

The appeals court ruled that Dalton received ineffective legal assistance at trial.

Dalton had argued that his former trial lawyer didn't inform him of the legal implications of a guilty plea or ask for an immediate dismissal on First Amendment grounds.

Dalton, 24, of Columbus, pleaded guilty in July 2001 to pandering obscenity involving a minor, which falls under Ohio's pornography law. He later asked to withdraw the plea so he could fight the constitutionality of the law, but Franklin County Common Pleas Judge Nodine Miller refused. ACLU attorneys then appealed.

Miller sentenced Dalton to seven years, plus 4 1/2 years from a 1998 child pornography conviction because he violated probation by possessing the journal.

Source: http://www.cnn.com/2003/US/Midwest/07/17/obscene.journal.ap/index.html

I posted this in the GB as well.

Discuss.

 

[Pookie]

More info ...

Ohio Appeals Court Overturns First-Ever Conviction for Writings in Private Diary

July 17, 2003

Case Sent Back to Trial Court Where First Amendment Issues Will Be Heard

FOR IMMEDIATE RELEASE

COLUMBUS, OH -- A state appeals court today reversed the conviction of Brian Dalton, who had been sentenced to 11 years in prison for recording fantasies of child molestation in a secret journal. The conviction gained international attention as the first time that an American had been sentenced to prison over the content of his private diary.

The American Civil Liberties Union of Ohio, which represented Dalton in his appeal, hailed the ruling, saying that it paves the way for challenging the application of Ohio’s obscenity laws to private works of fiction.

“Brian Dalton’s conviction raised the darkly chilling case of a man punished not for what he did, but for what he thought,” said ACLU of Ohio Legal Director Raymond Vasvari. “However disturbing his ideas, in America, every person is entitled to record his thoughts without the fear of prison.”

ACLU of Ohio volunteer attorney Benson Wolman, who was part of a team of ACLU lawyers who handled the appeal, praised the decision as a chance to address the free speech issues at the core of the case. “Brian Dalton was convicted of conduct which the First Amendment protects. Now, with the procedural issues raised by his mistaken plea behind us, we can present the trial court with the constitutional issues so important to his case.”

Dalton was convicted in June 2001. He pled guilty after his trial lawyer advised him against presenting a First Amendment defense. The ACLU then stepped forward to defend him on appeal. The opinion issued today holds that Dalton did not have the benefit of effective counsel at trial. He is now permitted to withdraw his guilty plea and present a First Amendment defense in a new trial, ordered by the Court of Appeals.

The diary entries for which Dalton was convicted involved depictions of sex with fictitious minor children. While child pornography is generally without First Amendment protection, the United States Supreme Court held last year that imaginary depictions of child erotica cannot be criminalized because their creation “records no crime and creates no victim.” That case, Ashcroft v. Free Speech Coalition, declared the federal Child Online Protection Act unconstitutional, in large part because it criminalized the creation of “virtual pornography” involving youthful images.

Source: http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=13168&c=42

 

[Kostly]

ARE YOU A CARD CARRYING MEMBER?

I am...

Support your ACLU for they support you every day... www.ACLU.org

 

[Chicklet]

oh my god!

child pornography imho is bad, but that they could prosecute someone for writing fiction about it?! That blows my mind. It makes me wince at all the times I could be arrested for one of my characters raping another...shiver.

 

[Quasimodem]

For any brave souls who wish to rush out and test this new ruling in their state, a few points to consider:

The accused has been at the mercy of the law since 1998. He has gone through one lawyer - incompetent perhaps - who is bound to demand payment for services rendered.

While the ACLU probably did not charge in the Ohio Appeals Court case, the accused’s retrial will be again handled by a lawyer hired, and payed by him.

He may be able to get some people who feel like Chicklet to donate to his cause, of help pay his legal fees, but will they be enough?

Finally, once the case is submitted, the prosecution could change a single word of the original charge that would totally invalidate the Ohio Appeals Court Decision, in the case at hand.

It is never a good idea to get involved in any ground-breaking legal hassle, unless your love of publicity surpasses all reason.

 

[Kostly]

oh my god!

child pornography imho is bad, but that they could prosecute someone for writing fiction about it?! That blows my mind. It makes me wince at all the times I could be arrested for one of my characters raping another...shiver.

This prosicution is a failure of realism... it sounds like the DA is just a bully triing to control people. It would not withstand any real court tests with any real lawyers...

Sorry, but Child pornography laws deal with REAL PHOTOS, and VIDEOS only. In fact a case involving a person who cut photos of childrens faces and pasted them on pics of nude women was recently thrown out cause of its first ammendment issues.

 

[Quasimodem]

This prosicution is a failure of realism... it sounds like the DA is just a bully triing to control people. It would not withstand any real court tests with any real lawyers...

You seem to be labouring under the misapprehension that Courts are concerned with Justice. You couldn’t be further off the mark. Courts are concerned with interpreting the laws as they are written, now.

 

[MlledeLaPlumeBleu]

I may be completely off base here, but I thought I recalled something discretionary about censoring things "that appeal to the prurient interest" in terms of writing.

If you are writing about how Wesley Allan Dodd performed live surgery on a toddler and repeatedly sodomized him and you have an academic or sociological or literary intent, this is a valid use of free speech.

Meaning, if you are writing about the rape and vivesection of a three year old to arouse the prurient interest, you are subject to law.

I personally tend to think there is a big difference between Chicklet's (and my) eroticized (read: pleasurable) notions of non-consent between fictional adults and pandering to the fantasies of would-be child killers- MacDonald proved that with an increase in saturation and exposure to images and ideas, most psycho-sexual pedophiles are able to become desensitized enough to eventually carry out the acts they fantasize about. And I don't think that's a good time for anyone.

 

[Rainbow Skin]

Two entirely separate issues.

Whether the clear prohibition on using real children for deviant purposes, such as in a photograph, should be extended to comparably graphic forms that didn't really involve a child -- such as a faked photograph, or a written story.

Whether the moral offence of publication or dissemination of obscene articles consists mainly in the publication/dissemination, or in the possession of the material.

In the first question, is a written story like a photograph? In the second question, is a posted story like a story hidden in a diary?

 

[hiddenself]

Two entirely separate issues.

Whether the clear prohibition on using real children for deviant purposes, such as in a photograph, should be extended to comparably graphic forms that didn't really involve a child -- such as a faked photograph, or a written story.

Whether the moral offence of publication or dissemination of obscene articles consists mainly in the publication/dissemination, or in the possession of the material.

In the first question, is a written story like a photograph? In the second question, is a posted story like a story hidden in a diary?

In the US, legal answers are clear. For the first question, no. Unless you repeal the 1st Amendment. Because of this, the second question is moot (it doesn't matter -- they're equally protected).

If you're asking about the morality (not legality) of the issues, the answers are inherently subjective. My morality may say one thing, yours may say another. One society's morality may be this way, another's another way.

[ACLU -- yes, I am a card-carrying member -- I consider it the #1 guardian of freedoms these paranoid days.]