Civil libertarians are rallying behind a Columbus, Ohio, man who was sentenced to seven years in prison on pornography charges for writing his fantasies of torturing and molesting children in a private journal -- even though he did not disseminate the material.
The fictitious stories that Brian Dalton, 22, a previously convicted child pornographer, wrote in his diary about three 10- and 11-year-old children caged in a basement were so disturbing that the grand jurors who indicted him asked a detective to stop reading them after about two pages.
Free speech advocates in Ohio and elsewhere say they, too, are appalled by Dalton's grotesque fantasies. But they are hoping to prepare a constitutional challenge to the broadly worded state law that sent Dalton to prison earlier this month, because it covers not only photographs and other images of real children but the written expression of imagined thoughts involving fictional children.
What's more, they said, there was never evidence that the material was intended for anything except Dalton's private use in the confines of his home.
"It's really dangerous," said Raymond Vasvari, legal director of the American Civil Liberties Union of Ohio. "These are the jottings of a man who kept his fantasies entirely to himself. He didn't try to distribute them to anyone."
Dalton, who was on probation for a 1998 conviction for pandering pornographic photos of children, was charged with pandering pornography after his probation officer found the 14-page diary entry during a search of his home.
In a plea bargain, Dalton pleaded guilty on July 10 to one count of pandering obscenity involving a minor and was sentenced to seven years in prison and an additional 18 months for violating his probation. Another count in the indictment, which would have added five years to his sentence, was dropped.
The prosecutor, Ron O'Brien, declined to comment on the Dalton case. At the time of Dalton's plea, he called the case a breakthrough for child pornography prosecution. In 1990, O'Brien defended Ohio's 1989 law governing obscenity involving minors before the U.S. Supreme Court, which upheld it.
Dalton was charged under that law. (Ohio has a separate obscenity statute that requires dissemination of pornography.)
First Amendment advocates concede that they face an uphill battle before they can challenge Dalton's conviction on constitutional grounds, because he must first successfully petition the court to allow him to change his guilty plea.
Courts often are reluctant to allow plea reversals without compelling reasons such as proof of coercion or incompetent legal representation. Dalton's lawyer, Isabella Dixon, has said her client "felt it was in his best interest" to plead guilty, but she has not commented on what she advised him to do.
If Dalton is allowed to change his plea, two key constitutional issues in obscenity law could be examined, civil libertarians said.
The first is whether child pornography is limited to images or whether, as Ohio's pandering law asserts, it includes "any obscene material that has a minor as one of its participants or portrayed observers." The Supreme Court has held that child pornography is limited to images, but it has agreed to hear arguments this fall about whether computer-generated images of children engaged in sex constitutes child pornography if no actual children are involved.
Free-speech advocates said they also want to test whether child pornography is illegal if it is simply possessed without an intent to distribute. The Supreme Court has suggested that even private use of pornography should be prohibited when the need to protect children from pedophiles is of such overriding importance to society that it should be balanced against First Amendment rights.
Vasvari said the arguments for Ohio's 1989 law banning possession of obscene material involving children are a throwback to a pornography standard abandoned more than 30 years ago.
At that time, the Supreme Court moved away from the "bad tendency" theory, which held that the mere possession of obscene material incites the possessor to commit illegal sexual acts. That standard was supplanted in 1969 by a legal test requiring that the obscene material present a clear and imminent danger to children.
"For 30 years the bad-tendency concept has been dead, and this [the Dalton case] is an attempt to resuscitate it," Vasvari said. "They want to punish people for what might happen and not what happened. They are criminalizing a man's thoughts just because he got caught putting those thoughts into his private diary."
Vasvari said he hopes Dalton decides to file a petition to withdraw his guilty plea. He said the ACLU will follow the case closely and "if there's an opportunity to weigh in, we'll do it."
Gary Daniels, spokesman for the National Coalition Against Censorship, said his New York-based group was also looking for an opportunity to help contest the Ohio law as overly broad.
Daniels said the fundamental idea behind child pornography laws is to protect children. Images of children engaged in sexual acts are regarded as proof that real -- not imagined -- children were abused, he said.
"But what we're talking about here is a man who did not even attempt to disseminate his fantasies about fictional minors who came solely out of his imagination," Daniels said. "To arrest, convict and sentence someone on that basis is straight out of the thought police. It's an egregious violation of freedom of expression."
However, Bruce Taylor, president of the National Law Center for Children and Families, said, "the Ohio law doesn't say he can't have those thoughts, those fantasies. It just says that he can't commit them to writings or images that become child pornography, because there's a likelihood he could act on them in the future."
Taylor, a former Cleveland prosecutor who said he handled more than 600 obscenity cases, contended that the law clearly has evolved to a point where courts agree that in order to eliminate child pornography, First Amendment rights have to be balanced in favor of protecting children.
Some privately held written material, Taylor said, "incites pedophiles to molest and seduces kids to be victims."
"Child pornography doesn't stay in your sock drawer. It gets a life of its own and is acted out eventually. Kids get hurt by its mere existence," he said.
Janet LaRue, senior legal studies director of the Family Research Council, which battles child pornography, said that while she regards Dalton as potentially dangerous to children, she does not believe his diary entries are illegal under Supreme Court decisions.
"I think you could win this one in your sleep under existing case law," she said.
LaRue said the law, as defined by the Supreme Court, requires images of children in sexually explicit circumstances and the active dissemination of those images.
The kind of fantasies that Dalton admitted writing in his diary might provide a prison psychiatrist with a reason to keep an offender confined past his scheduled release date if they were found in his cell, but current law does not warrant conviction and imprisonment of a person for writing pornographic fantasies in the privacy of his or her home, LaRue said.
"I think he [Dalton] is potentially a very dangerous man," she said. "But at the same time, we do treasure the First Amendment and this seems to me to be a case of punishing a person's thoughts."
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