Jane Doe v. Dean Boland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0382p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JANE DOE and JANE ROE, c/o their guardians

Plaintiffs-Appellees, --
and next friends,

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No. 11-4237

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Interested Party-Intervenor, -
UNITED STATES OF AMERICA,
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v.

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Defendant-Appellant. -
DEAN BOLAND,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:07-cv-2787—Dan A. Polster, District Judge.
Argued: October 10, 2012
Decided and Filed: November 9, 2012
Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge*

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COUNSEL
ARGUED: Dean Boland, BOLAND LEGAL, LLC, Lakewood, Ohio, for Appellant.
Jonathan E. Rosenbaum, Elyria, Ohio, for Appellees. Anne Murphy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Dean
Boland, BOLAND LEGAL, LLC, Lakewood, Ohio, for Appellant. Jonathan E.
Rosenbaum, Elyria, Ohio, for Appellees. Anne Murphy, Thomas M. Bondy, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.

*
The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.

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No. 11-4237 Doe et al. v. Boland Page 2

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OPINION
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SUTTON, Circuit Judge. To help defendants resist child-pornography charges,
technology expert and lawyer Dean Boland downloaded images of children from a stock
photography website and digitally imposed the children’s faces onto the bodies of adults
performing sex acts. Boland’s aim was to show that the defendants may not have known
they were viewing child pornography. When the parents of the children involved found
out about the images, they sued Boland under the civil-remedy provisions of two federal
child-pornography statutes. The district court granted summary judgment to the parents
and awarded them $300,000 in damages. We affirm.

I.

In February 2004, Dean Boland downloaded images of two identifiable children,
given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation,
from a stock photography website. See Doe v. Boland, 630 F.3d 491, 493 (6th Cir.
2011). Boland digitally manipulated (“morphed”) the photographs to make it look like
the children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating
a doughnut; Boland replaced the doughnut with a penis. In another, he placed six-year-
old Jane Doe’s face onto the body of a nude woman performing sexual acts with two
men. In March and April 2004, Boland used the images as part of his expert testimony
in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving
child pornography. He displayed “before-and-after” versions of the images, testifying
that it would be “impossible for a person who did not participate in the creation of the
image to know [the child is] an actual minor.” R. 77-2 at 119.

Boland’s testimony caught the attention of the FBI’s Cleveland office. Federal
agents searched his home and seized several files from his computer. Boland, 630 F.3d
at 494. In April 2007, Boland entered a pre-trial diversion agreement with the U.S.
Attorney’s Office for the Northern District of Ohio, in which he admitted violating
No. 11-4237 Doe et al. v. Boland Page 3

18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a “visual depiction [that] has been
created, adapted, or modified to appear that an identifiable minor is engaging in sexually
explicit conduct.” R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology
in the Cleveland Bar Journal, stating, “I do recognize that such images violate federal
law.” R. 73-1 at 12.

In September 2007, Jane Doe, Jane Roe and their guardians filed this lawsuit
against Boland under 18 U.S.C. §§ 2252A(f) and 2255. Section 2252A(f) provides a
civil remedy to “[a]ny person aggrieved” by child pornography, while § 2255 provides
a civil remedy of at least $150,000 in damages to minor victims who suffer a “personal
injury” from various sex crimes.

The district court granted summary judgment to Boland on the ground that these
two civil remedy statutes exempt expert witnesses from liability. We reversed, holding
that the laws contain no such exemptions or any other exemption that would cover
Boland. Boland, 630 F.3d at 493. On remand, the district court ruled for the plaintiffs
and awarded $150,000 to Doe and $150,000 to Roe.

II.

To resolve Boland’s appeal, we must answer three questions: (1) did the
plaintiffs meet the requirements for obtaining relief under § 2255; (2) does the definition
of morphed images as “child pornography” in § 2256(8)(C) violate the First Amendment
as applied to Boland’s conduct; and (3) does the district court’s award violate the Sixth
Amendment’s right to counsel?

A.

Section 2255 allows “[a]ny person who, while a minor, was a victim” of a variety
of sex crimes “and who suffers personal injury as a result . . . regardless of whether the
injury occurred while such person was a minor” to sue and “recover the actual damages
such person sustains.” Any person who meets that description “shall be deemed to have
sustained damages of no less than $150,000 in value.” Id. One of the statutes listed in
§ 2255 is 18 U.S.C. § 2252A, and Boland admits he violated it by morphing the
No. 11-4237 Doe et al. v. Boland Page 4

plaintiffs’ images into pornography. That act, Boland also concedes, makes Doe and
Roe “minor” “victim[s]” under § 2255.

That leaves the question whether the plaintiffs suffered a resulting “personal
injury.” They did. “Like a defamatory statement,” pornography injures a child’s
“reputation and emotional well-being,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 249
(2002), and violates “the individual interest in avoiding disclosure of personal matters,”
New York v. Ferber, 458 U.S. 747, 759 n.10 (1982) (internal quotations omitted).
Morphed images are of a piece, offering a difference in degree of injury but not in kind.
Boland created lasting images of Doe and Roe, two identifiable children, purporting to
engage in sexually explicit activity. If the point of Boland’s exercise was to demonstrate
that the naked eye cannot distinguish morphed images of child pornography from real
child pornography, as he claims it was, that goes a long way toward confirming that
morphed images may create many of the same reputational, emotional and privacy
injuries as actual pornography. And like defamation, those harms are “personal
injuries.” See, e.g., United States v. Burke, 504 U.S. 229, 235–36 & n.6 (1992)
(explaining that “personal injuries,” when used in the tax code, include “‘dignitary’ or
nonphysical tort[s] such as defamation”), superseded by statute on other grounds, Small
Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1605, 110 Stat. 1838; see
also Restatement (Second) of Torts § 7 (defining “injury” as “the invasion of any legally
protected interest of another”); Restatement (Third) of Torts: Liability for Economic
Harm § 2, cmt. a (Tentative Draft) (“Defamation . . . is regarded as inflicting a kind of
personal injury: harm to the plaintiff’s reputation.”); Black’s Law Dictionary (9th ed.
2009) (defining “personal injury” as “any invasion of a personal right, including mental
suffering”). Doe and Roe suffered personal injuries under § 2255.

That cannot be, Boland insists, because § 2255 plaintiffs must show two
things—that they are “victims” and that they suffered a “personal injury”—suggesting
that a plaintiff’s “personal injury” means more than showing he was a “victim.” Not
necessarily. Courts, sure enough, generally construe statutes to avoid surplusage. See,
e.g., Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012). But Boland focuses
No. 11-4237 Doe et al. v. Boland Page 5

on “victim” and “personal injury” at the expense of other context-illuminating words in
the statute’s first sentence. Section 2255 requires that a person be a minor when she is
the victim of a sex crime but allows that person to recover when she incurs an injury,
“regardless of whether the injury occurred while such person was a minor.” In this
instance, the plaintiffs became victims of Boland’s conduct at the same time that they
suffered injuries, namely the moment Boland created the morphed images with their
likenesses. But victimhood and injury need not occur simultaneously. A child abused
through a pornographic video might have one § 2255 claim against the video’s creator
as soon as it is produced and another against the distributor who sells a copy of the
video twenty years later. Cast in this light, the statute’s separate references to “victim”
and “personal injury” show only that minor victims may sue for injuries they incur later
in life; the statute does not create one category of victims and another category of people
who suffer personal injuries.

Timing is not the only sign that § 2255 does not create separate categories. Even
if this statutory explanation did not exist, the presumption against surplusage does not
apply to doublets—two ways of saying the same thing that reinforce its meaning.
Freeman, 132 S. Ct. at 2042–43. The U.S. Code is replete with meaning-reinforcing
redundancies: an invalid contract is “null and void”; agency action must not be
“arbitrary and capricious”; bureaucrats send “cease and desist” letters; a bankruptcy
trustee can sell a debtor’s property “free and clear” of other interests; and so on. See,
e.g., 16 U.S.C. § 2613; 7 U.S.C. § 13b; 11 U.S.C. § 363(f). When faced with an agency
order, to use one of these examples, how could a citizen cease but not desist? He could
not. “Sometimes drafters do repeat themselves and do include words that add nothing
of substance, either out of a flawed sense of style or to engage in the ill-conceived but
lamentably common belt-and-suspenders approach.” Antonin Scalia & Bryan A. Garner,
Reading Law 176–77 (2012); see TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d 574, 578
(6th Cir. 2010) (observing that “lawyers frequently say two (or more) things when one
will do or say two things as a way of emphasizing one point”).
No. 11-4237 Doe et al. v. Boland Page 6

Just so here. A victim by definition is someone who suffers an injury. A
defendant convicted of a child-pornography offense must pay restitution to a “victim”:
“the individual harmed as a result of a commission of a [child-pornography] crime.”
18 U.S.C. § 2259(c). That definition also comports with the common understanding of
what it means to be a “victim.” See, e.g., Webster’s Second Int’l Dictionary 2841 (1953)
(“A person or living creature injured . . . at the hands of another person.”); Black’s Law
Dictionary (9th ed. 2009) (“A person harmed by a crime, tort, or other wrong.”); Oxford
English Dictionary Online (3d ed. 2012) (“One who suffers some injury, hardship, or
loss.”). Jane Doe and Jane Roe undoubtedly were victims of Boland’s conduct. So too
they undoubtedly suffered personal injuries by any conventional reading of that phrase.

These injuries also suffice to establish standing under Article III. Standing
requires a plaintiff to show an “injury in fact,” namely an “actual or imminent” invasion
of a “concrete and particularized” legally protected interest. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Jane Doe and Jane Roe are real children with legally
protected interests in their reputations. See Ashcroft, 535 U.S. at 249. By sharing the
morphed images with defense counsel and court staff and displaying the images in a
courtroom, Boland invaded those interests. Unlike plaintiffs who seek to collect for an
abstract injury, see Lujan, 504 U.S. at 563–64, Jane Doe and Jane Roe suffered injuries
in fact. And unlike plaintiffs whose only injury is the violation of a statutory right, see
Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 988–89 (6th Cir. 2009); Edwards v.
First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010), cert. dismissed as improvidently
granted, 132 S. Ct. 2536 (2012), Boland’s display of the morphed images in court
harmed Doe and Roe. Section 2255 provides Doe and Roe relief, namely $150,000 in
presumed damages, but it did not create the rights Boland violated.

Boland separately argues that § 2255 requires victims of child pornography to
show that they incurred “actual damages,” and plaintiffs offer no evidence of any such
damages. Most tort plaintiffs, it is true, must show the amount of their damages. But
§ 2255 is no ordinary cause of action. The statute declares that any victim “shall be
deemed to have sustained damages of no less than $150,000 in value.” 18 U.S.C.
No. 11-4237 Doe et al. v. Boland Page 7

§ 2255(a). Under Boland’s interpretation, victims would have to prove some amount of
damages first, and if that amount were less than $150,000, the court would increase the
damages to the statutory minimum. Such a reading turns § 2255 upside down. The point
of a minimum-damages requirement is to allow victims of child pornography to recover
without having to endure potentially damaging damages hearings. Were it otherwise,
a fresh damages hearing might inflict fresh wounds, increasing the child’s suffering and
increasing the compensatory damages to which she is entitled. “Congress could
rationally conclude” that all children depicted in morphed pornography “are seriously
injured and deserve a high threshold amount of damages.” Boland, 630 F.3d at 498.
Once a child has shown she was the victim of a sex crime, there is little point in forcing
her to prove an amount of damages, only to have the court disregard that figure and
award the statutory minimum. The district court did not err in awarding Doe and Roe
the minimum statutory amount without proof of “actual damages.”

Section 2255, we recognize, was not the only cause of action plaintiffs filed, but
it was all they needed to succeed. The plaintiffs also sued under § 2252A(f), which
allows “[a]ny person aggrieved by” child pornography to “commence a civil action.”
Unlike § 2255, however, § 2252A(f) contains no threshold damages provision. Under
§ 2252A(f)(2)(B), a court may award “compensatory and punitive damages” to a
plaintiff. Because the plaintiffs did not try to show the exact amount of their damages,
see R. 72, the district court could not have based its award on this cause of action. The
district court’s award of the statutory minimum under § 2255—$150,000 to each
plaintiff—confirms that the plaintiffs prevailed on that statute alone, and, as we have just
shown, they did so permissibly.

B.

This damages award does not run afoul of the First Amendment, which says that
“Congress shall make no law . . . abridging the freedom of speech.” Not all speech,
whether verbal or visual, receives First Amendment protection. Obscenity, defamation,
fraud, incitement and solicitation of crime are all examples of communication for which
the speaker must take responsibility and from which the First Amendment offers no
No. 11-4237 Doe et al. v. Boland Page 8

sanctuary. See United States v. Stevens, 130 S. Ct. 1577, 1584 (2010). Child
pornography is the same. Ferber, 458 U.S. at 763–64. The “evil” of child pornography
“so overwhelmingly outweighs the expressive interests, if any, at stake” in this form of
communication that it lies categorically beyond constitutional protection, meaning that
“no process of case-by-case adjudication is required” to uphold restrictions on it. Id.
The rationale is straightforward: Governments have a compelling interest in protecting
children from abuse, the value of using children in pornography is non-existent, and the
market for child pornography is “intrinsically related” to the underlying abuse. Id. at
759.

All of this would make a free-speech challenge to a criminal or civil penalty
imposed for actual child pornography easy to reject. Id. at 763. But what of morphed
images like the ones Boland created? The relevant statute defines “child pornography”
to include morphed images, as it covers a “visual depiction [that] has been created,
adapted, or modified to appear that an identifiable minor is engaging in sexually explicit
conduct.” 18 U.S.C. § 2256(8)(C). In addressing a First Amendment challenge to this
definition and one found in related statutes, Ashcroft struck down a ban on
“virtual”—entirely computer-generated—child pornography and pornography that
“appears to” depict children. 535 U.S. at 258. That opinion did not resolve the validity
of a ban on morphed images, but it did note that those images “implicate the interests of
real children” and thus bear a closer similarity to actual child pornography than to virtual
or simulated child pornography. Id. at 242. Jane Doe and Jane Roe are real children.
Their likenesses are identifiable in Boland’s images. That Doe and Roe were real
victims with real injuries offers one reason for rejecting Boland’s First Amendment
challenge.

The relatively weak expressive value of morphed images offers another.
Morphed child pornography is indistinguishable from actual child pornography, which
itself has “exceedingly modest, if not de minimis,” First Amendment value. Ferber,
458 U.S. at 762–63. And unlike pornography that “appears to” depict children, morphed
images are never necessary to achieve an artistic goal. See Ashcroft, 535 U.S. at 247
No. 11-4237 Doe et al. v. Boland Page 9

(discussing how the “appears to be” ban might prohibit a version of Romeo and Juliet
that used adult actors to portray the star-crossed teenage lovers). Virtual children or
actual adults create the same visual effect as a morphed image, yet do no harm to the
interests of identifiable minors.

Other circuits have reached the same conclusion in rejecting First Amendment
challenges to § 2256(8)(C) criminal prosecutions since the 2002 Ashcroft decision. The
Second Circuit explained that the “underlying inquiry” is whether “an image of child
pornography implicates the interests of an actual minor.” United States v. Hotaling,
634 F.3d 725, 729 (2d Cir. 2011). Morphed images of this sort fit the bill. By using
identifiable features of children, they place “actual minors” “at risk of reputational
harm” and are thus “not protected expressive speech under the First Amendment.” Id.
at 729–30. The Eighth Circuit followed a similar path. Because a morphed image
“implicates the interests of a real child,” it creates “the type of harm which can
constitutionally be prosecuted under [Ashcroft v.] Free Speech Coalition and Ferber.”
United States v. Bach, 400 F.3d 622, 632 (8th Cir. 2005).

The New Hampshire Supreme Court’s decision in State v. Zidel, 940 A.2d 255
(2008), says nothing to the contrary. That decision invalidated a statute barring
possession of morphed images because the state child-pornography laws aimed only to
“combat the harm resulting to children from the distribution of depictions of sexual
conduct involving live performance[s] or visual reproduction of live performances by
children.” Zidel, 940 A.2d at 263. A morphed image, the state court reasoned, does not
involve a live sexual performance. Id. The federal child-pornography statutes, by
contrast, target “computers and computer imaging technology” that can “invade the
child’s privacy and reputational interests” by “alter[ing] innocent pictures of children to
create visual depictions of those children engaging in sexual conduct.” Child
Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121(1)(6), (7), 110 Stat.
3009 (1996). The legitimate government interest in avoiding “injury to [a] child’s
reputation and emotional well-being,” Ashcroft, 535 U.S. at 249, allows Congress to
prohibit morphed images.
No. 11-4237 Doe et al. v. Boland Page 10

Boland adds that morphed images harm children only “if the person in the image
becomes aware of the image’s existence and if that person is a minor at the time of
learning of the image’s existence and if becoming aware of the image’s existence
causes psychological harm to the minor.” Appellant’s Br. at 26. Yet the same might be
said of possession of actual child pornography. Under Boland’s theory, the collector of
child pornography only causes harm if he distributes the images to others, if he does so
while the children depicted are still minors and if the children actually suffer a
psychological harm. In today’s digital world, any image is “primed for entry into the
distribution chain” of underground child pornographers. Hotaling, 634 F.3d at 730
(citing Osborne v. Ohio, 495 U.S. 103, 110 (1990)). Even if Doe and Roe never see the
images, the specter of pornographic images will cause them “continuing harm by
haunting [them] in years to come.” Osborne, 495 U.S. at 111. As a result, it is
immaterial that Boland never displayed these images outside of a courtroom and never
transmitted them electronically. The creation and initial publication of the images itself
harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the
protections of the First Amendment.

C.

In claiming that § 2256(8)(C) violates the Sixth Amendment rights of current and
future litigants, Boland faces a serious impediment. He recently raised the same
argument before another panel and lost. Boland v. Holder, 682 F.3d 531, 536–37
(6th Cir. 2012).

***

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. Boland, 630 F.3d at 495. 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
No. 11-4237 Doe et al. v. Boland Page 11

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.

III.

For these reasons, we affirm.