1st amend: fiction != reality, words not kiddy pr0n

Major Variola (ret.) mv at cdc.gov
Thu Jul 17 13:24:13 PDT 2003

Appeals Court Dismisses Ohio Man's Guilty Plea in Obscenity Case
Involving Fictitious Stories

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 fictional writings, not images.

The 10th Ohio District Court of Appeals in Columbus ruled that Dalton
received ineffective legal assistance. Dalton had argued that his former
lawyer didn't inform him of the legal implications of a guilty plea or
ask for an immediate dismissal on First Amendment grounds.

The 3-0 ruling sends the case back to Franklin County Common Pleas
Court. Dalton could still be tried but prosecutors have not said whether
they would seek to do so.

Ray Vasvari, the American Civil Liberties Union's state legal director
in Cleveland, called the decision an "important recognition for not only
freedom of speech but freedom of thought."

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 challenge the
constitutionality of the law, but Franklin County Common Pleas Judge
Nodine Miller refused. ACLU attorneys then appealed.

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

The 14-page journal contained stories about three children - ages 10 and
11 - being caged in a basement, molested and tortured. Prosecutors
acknowledged the stories were pure fiction.

The journal was found by Dalton's probation officer during a routine
search of his home.

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

The appeals court found that Dalton's defense attorney, Isabella Dixon,
misunderstood the two charges against her client.

Both charges were based on the journal and involved fictitious events,
the court found. Dixon, it said, had erroneously believed one of the
charges was based on a letter Dalton wrote describing sexual molestation
of a young cousin, a real person.

"This misunderstanding was significant because of the important
differences in the constitutional protections afforded the private
possession of pornographic depictions of real children and similar
depictions of fictional children," Judge William Klatt said, writing for
the majority.

A message was left with Dixon seeking comment.


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