July 13, 2001 10:35am
Questions Raised About Obscenity Laws
by: Liz Sidoti
(COLUMBUS, OH) -- First Amendment experts are alarmed by the case of an Ohio man who got 10 years in prison for child pornography for scribbling made-up tales in his private journal about molesting children.
Lawyers specializing in free-speech cases and obscenity law believe Brian Dalton's case is the first anywhere in the United States in which someone was successfully prosecuted for child porn that involved writings, not images.
They are also disturbed that the case involved porn that was for Dalton's private use and was not disseminated.
``His thoughts may be disturbing and repugnant, but he has got a right to have them and write them down for his own use,'' said Raymond Vasvari, legal director for the Ohio chapter of the American Civil Liberties Union (news - web sites).
Dalton's case has raised so many questions that he is considering trying to withdraw his guilty plea, defense attorney Isabella Dixon said Thursday.
Ron O'Brien, the Franklin County prosecutor who has hailed the case as a breakthrough in child-pornography prosecution, declined comment.
Dalton, 22, pleaded guilty last week to pandering obscenity involving a minor. As part of the plea bargain, a second count was dropped for five fewer years in prison.
Dalton, who was on probation from a 1998 pandering conviction involving pornographic photographs of children, was charged after his probation officer found the journal during a routine search of his home.
The 14-page journal contained stories about three children - ages 10 and 11 - being caged in a basement, molested and tortured. The contents were so disturbing that members of a grand jury asked a detective to stop reading after about two pages, a prosecutor said. Prosecutors said the stories are pure fiction.
Dalton was charged under Ohio's 1989 child porn law, which bans possession of obscene material involving children. He was not charged under Ohio's obscenity law, which requires dissemination and not just possession.
Ohio's law is broad in describing child pornography as ``material'' and not simply ``images,'' as in most other states, said Bruce Taylor, president of the National Law Center for Children and Families, which helps prosecutors in child porn cases.
Dalton's lawyer said her client ``felt it was in his best interest'' to plead guilty. She would not say what she advised him to do.
Dalton cannot challenge the constitutionality of the law unless he petitions the court to let him change his plea.
Some lawyers specializing in First Amendment cases said they believe he would win in court.
Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, said the case is ``astounding'' because it goes against U.S. Supreme Court (news - web sites) rulings.
The high court has held that child pornography is limited to images. The court is set to hear arguments in a California case this fall about whether purely computer-generated images of children engaged in sex - not images of actual children - constitute child pornography.
The Supreme Court also has ruled that obscene material is illegal only if it is disseminated and not simply possessed, but that the mere possession of child porn can be prosecuted if there is an overriding societal interest in protecting children.
``Here, that whole rationale doesn't apply,'' said David Goldberger, an Ohio State University law professor who specializes in First Amendment issues. ``There's no indication that any children were harmed in its production or that children would be harmed.''
Janet LaRue, senior director of legal studies at the Washington-based Family Research Council, which fights child pornography, said Dalton's tales could be extremely dangerous because they could entice him to seduce children.
``It's like an arsonist with matches,'' LaRue said. ``But while we admire a prosecutor who is concerned about the potential of children being harmed, we recognize that this case has serious problems.''
Gary Daniels, spokesman of the New York-based National Coalition Against Censorship, said: ``It's one thing to get an obscenity prosecution when there's visual images. To suggest that something could be obscene in a written form points out the contradictions in obscenity law.''
``If you're going to use this kind of logic in prosecuting people,'' he said, ``that means that any person who writes something in a fictional manner about breaking the law could be breaking the law.''