Textual "Child Porn" Conviction in Ohio

[Eric Cordian]

Here's some more screwing around with the First Amendment from our friends
in the great state of Ohio.

Ohio, as you may recall, brought us the Supreme Court decision permitting
state laws to call anything they like "child porn," including mere nudity
and mere text.  It also brought us the Mapplethorpe Trial, the "Salo" gay
bookstore arrest, the Larry Flynt trial, and served as the birthplace of
the National Coalition Against Pornography.

Now Ohio is again at the forefront of blue-nosed preoccupation with
private conduct in the home.

In a case the prosecutor calls a "breakthrough" in the war against child
pornography, a Columbus man pleaded guilty to a single charge of pandering
child pornography and got a 10 year prison sentence.  His only crime was
writing words in a personal journal, which he never showed to anyone, and
which was discovered during a routine search of his home.  Had he gone to
trial and lost, he would have faced a 16 year prison sentence.

The law in question makes it illegal to "create, reproduce, or publish any
obscene material that has a minor as one of its participants or portrayed
observers."

Apparently, in Ohio, it's even illegal to write about a minor watching
someone else have sex.

I believe this to be the first successful US child porn prosecution for
purely textual material created for private use.

Civil Libertarians are, of course, unamused.  I wonder how many of them
have the balls to say so publicly, and risk getting labeled as supporting
the sexual abuse of children.

My guess is that the ACLU will keep silent on this one, and stick with
defending the right of Jewish children not to be frightened by Santa.

http://www.dispatch.com/news/news01/july01/755632.html

-----

Brian Dalton wrote fictitious tales of sexually abusing and torturing
children in his private journal, intending that no one else see them, he
said.
   
But when his probation officer found the journal during a routine search
of Dalton's Columbus home, prosecutors charged him with pandering
obscenity involving a minor.
   
In Franklin County Common Pleas Court yesterday, the 22-year-old man's
written words cost him 10 years in prison.
   
The case worries civil-rights lawyer Benson Wolman, who said it has
free-speech implications.
   
"What you're saying is somebody can't, in essence, confess their fantasy
into a personal journal for fear they have socially unacceptable
fantasies, then ultimately they end up getting prosecuted,'' said Wolman,
former director of the American Civil Liberties Union in Ohio.
   
"This is the only case that I know of where we are talking about a journal
-- just written words. It surprises and offends me that an action should
be brought based on a journal.''
   
But Franklin County Prosecutor Ron O'Brien called the case a
"breakthrough'' in the battle against child pornography.
   
The journal came to light earlier this year when a probation officer
discovered it during the search. Dalton was on probation from a 1998
pandering conviction involving photographs of child pornography.
   
The journal contains the names and ages -- 10 and 11 -- of three children
who had been placed in a cage in a basement. It details how the children
were sexually molested and tortured.
   
At first, police were concerned the accounts were real, prosecutors said.
   
However, Dalton told authorities they were fictitious, and there was no
evidence to the contrary, Assistant Prosecutor Christian Domis said.
   
The 14-page journal was presented to a grand jury. The contents were so
disturbing that jurors asked a detective to stop reading after about two
pages, Domis said.
   
"It was seriously the most disturbing thing I ever read,'' Domis said.
"There was a woman on the grand jury who was crying.''
   
Domis said most pandering cases in Franklin County involve photographs of
child pornography.
   
"This is one of the first felony cases in Franklin County that involves
the written word -- a writing somebody created on their own,'' he said.
   
"Even without passing it on to anyone else, he committed a felony.''
   
The Feb. 23 indictment alleges that Dalton "did create, reproduce or
publish any obscene material that has a minor as one of its participants
or portrayed observers.''
   
Wolman said he cannot recall an obscenity case involving "mere words that
were not disseminated.''
   
"It is just this kind of thing, I think, that is a misapplication of what
the law intends,'' he said.
   
But because Dalton pleaded guilty to the pandering charge, he cannot
appeal the conviction or 10- year sentence -- seven for the pandering
charge and three for violating probation.
   
In exchange for his guilty plea, prosecutors withdrew a second pandering
charge. He would have faced 16 years if convicted of both.
   
"The law hasn't really been challenged and he would have had the
opportunity to do that,'' defense attorney Isabella Dixon said. "But the
cost to him is a lot of time in jail to challenge it.''
   
At yesterday's sentencing, Dalton told Judge Nodine Miller: "I know what I
wrote was disturbing.
   
"Over the past few months, I looked back at it and realized it was not
something I could do. I don't know how I imagined to write anything like
that.''

--    
Eric Michael Cordian 0+
O:.T:.O:. Mathematical Munitions Division
"Do What Thou Wilt Shall Be The Whole Of The Law"