The opinion of the court was delivered by: Judge Dan Aaron Polster
MEMORANDUM OF OPINION AND ORDER
In the course of preparing expert testimony and exhibits for state and federal criminal trials in early 2004, Attorney Dean Boland downloaded innocent images of children from a stock photo website, then digitally modified (or "morphed") them into images of identifiable children engaged in sexually explicit conduct. Boland displayed the morphed images in courtrooms in Ohio and Oklahoma to help defend his clients against state and federal child pornography charges. Boland created the images to show how difficult it is for a person in possession or receipt of child pornography to discern whether the images are those of real children engaged in sexual activity or "virtual" children. The end result, when skillfully done, may be indistinguishable to the untrained eye from authentic images of minors engaged in sexual conduct. Congress has expressly criminalized such images by defining child pornography to include "any 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). There is no evidence that Boland used these images for anything other than providing a defense in criminal child pornography cases.
In May 2004, the FBI's Cleveland office initiated an investigation of Boland. In June 2005, FBI agents searched his home and car and seized certain electronic files. In April 2007, Boland entered into a pre-trial diversion agreement with the U.S. Attorney's Office for the Northern District of Ohio. Therein, Boland admitted violating 18 U.S.C. § 2252A(a)(5)(B)'s prohibition against knowing possession of child pornography, as defined in § 2256(8)(c). A condition of the pretrial diversion agreement required Boland to make a public apology in the Cleveland Bar Journal, where he stated, "I do recognize that such images violate federal law."
In September 2007, two of the minors whose images he used and their guardians filed this civil case against Boland under 18 U.S.C. § 2252A(f) which provides civil damages to "any person aggrieved" by reason of conduct criminalized under § 2252A(a), and under § 2255 which provides monetary damages of no less than $150,000 to minor victims who have suffered personal injury as a result of the same criminal conduct. In September 2009, this Court granted summary judgment to Boland on the federal claims and chose not to resolve the state law claims. (Doc #: 85.) Regarding the federal claims, the Court reasoned that to read the federal statutes as permitting liability under the instant facts could implicate a criminal defendant's Sixth Amendment right to counsel; was unfair given that Boland was responding to a federal court directive when he created and possessed the morphed images in Oklahoma; and would create serious comity issues since Ohio provided statutory immunity from state child pornography prosecutions for expert witnesses.
On appeal, the Sixth Circuit disagreed, finding that Congress had created no express or implied exceptions for expert witnesses in these circumstances, and that no common-law exemptions apply in this setting. Doe v. Boland, 630 F.3d 491 (6th Cir. 2011). Accordingly, the Sixth Circuit reversed this Court's decision and remanded the case, stating:
In view of these conclusions, we need not reach other defenses Boland has raised and that the district court has not yet considered. Boland, for example, argues that the children did not suffer "personal injury," as required under §2255, because the parties have stipulated that each child does not know about the images. The fact that Congress has set such a sizeable damages threshold ($150,000) may suggest that the personal injury requirement is a serious one. He also argues that none of the plaintiffs can show they are "aggrieved" under § 2252A(f). And it is possible that constitutional defenses remain. We entrust the initial resolution of these issues to the capable hands of the district court judge.
Upon remand, the Court held a teleconference with counsel to determine how best to proceed with this case. The parties agreed to brief the following issues: whether any of the Plaintiffs are "persons aggrieved" entitling them to monetary damages under § 2252A(f); whether the minor Plaintiffs suffered "personal injury" under § 2255 as a result of the criminal violations; whether the definition of child pornography in § 2256(8)(c) violates the First Amendment; and whether the application of the federal child pornography statutes to an expert witness in Boland's circumstances violates the Sixth Amendment right to effective counsel. Pursuant to Fed. R. Civ. P. 5.1(a)(1)(A)(2), Boland apprised the United States of America of the aforementioned constitutional challenges, thus affording the Government an opportunity to intervene and file a brief opposing those challenges. (Doc #: 95.) The Government timely filed a notice of intervention and a brief in defense of the constitutionality of 18 U.S.C. §§ 2255, 2252A(a)(5)(B), 2256(8)(c) and 2252A(f). (Respectively, Doc ##: 111, 112.) The Court granted Boland's request to file a response brief, and he timely filed that brief. (Respectively, Doc ##: 113, 114.) The Court has reviewed the parties' briefs (Doc ##: 98, 100, 106), the Government's brief and Boland's response (Doc ##: 112, 114), and the entire record and is prepared to issue its ruling.
Pursuant to the constitutional-avoidance doctrine, the Government asks the Court not to address the constitutional questions if it can dispose of this matter on other-than-constitutional grounds. (Doc #: 112 at 7-8.) While the Court believes it can resolve this case on non-constitutional grounds, it will address the constitutional issues as well so that the Sixth Circuit can review the Court's rulings on all issues raised by Boland.
Because none of the Plaintiffs have seen the pictures and the minors know nothing about them or this case, the Court must determine (1) whether the minor Plaintiffs have suffered "personal injury" under § 2255 as a result of Boland's conduct,*fn2 and (2) whether Plaintiffs are "persons aggrieved" entitling them to monetary damages under § 2252A(f)*fn3
According to Boland, none of the Plaintiffs are "persons aggrieved" based on an online dictionary definition of "aggrieved" and because Plaintiffs stipulated that they have suffered no damages, the minors have not seen the court exhibits, and the minors are unaware of this litigation. With regard to "personal injury," Boland argues that the $150,000 presumed damages is merely a threshold, and that such a steep threshold suggests that the personal injury requirement is a serious one. ...