Sunday, July 15, 2001

Journal raises concerns over Ohio obscenity laws

By Liz Sidoti
The Associated Press

        COLUMBUS, Ohio — The stories Brian Dalton wrote in his journal about torturing and molesting children were so disturbing that grand jurors asked a detective to stop reading after about two pages.

        The stories were also fiction. But he was sentenced to 10 years in prison.

        The case has alarmed lawyers specializing in First Amendment and obscenity law, who believe Mr. Dalton is the first person in the United States successfully prosecuted for child pornography that involved writings, not images.

        They are disturbed, too, that the case involved porn intended for Mr. Dalton's private use and was not disseminated.

        “His thoughts may be disturbing and repugnant, but he has got a right to have them and write them down for his own use,” said Raymond Vasvari, legal director for the Ohio chapter of the American Civil Liberties Union.

        Mr. Dalton, who was on probation from a 1998 conviction involving pornographic photos of children, was charged after his probation officer found the journal during a routine search of his home.

        Mr. Dalton, 22, pleaded guilty last week to pandering obscenity involving a minor. As part of the plea bargain, a second count was dropped for five years less in prison.

        His case has raised so many questions that he is considering trying to withdraw his guilty plea, defense attorney Isabella Dixon said Thursday.

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

        Mr. 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 possession.

        Ohio's law is broad in describing child pornography as “material” and not simply “images,” as in most other states, said Bruce Taylor, president of the National Law Center for Children and Families, which helps prosecutors in child porn cases.

        Mr. Dalton's lawyer said her client “felt it was in his best interest” to plead guilty. She would not say what she advised him to do.

        Mr. Dalton cannot challenge the constitutionality of the law unless he petitions the court to let him change his plea.

        Some lawyers specializing in First Amendment cases said they believe he would win in court.

        Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, said the case is “astounding” because it goes against U.S. Supreme Court rulings.

        The high court has held that child pornography is limited to images. The Supreme Court also has ruled that obscene material is illegal only if it is disseminated and not simply possessed, but possession of child porn can be prosecuted if there is an overriding societal interest in protecting children.

        “Here, that whole rationale doesn't apply,” said David Goldberger, an Ohio State University law professor who specializes in First Amendment issues. “There's no indication that any children were harmed in its production or that children would be harmed.”


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