Doe v. Boland

• Decision Date: 09 November 2012
• Docket Number: No. 11–4237.,11–4237.
• Citation: 698 F.3d 877
• Parties: Jane DOE and Jane Roe, c/o their guardians and next friends, Plaintiffs–Appellees, United States of America, Interested Party–Intervenor, v. Dean BOLAND, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

698 F.3d 877

Jane DOE and Jane Roe, c/o their guardians and next friends, Plaintiffs–Appellees,United States of America, Interested Party–Intervenor,

v.Dean BOLAND, Defendant–Appellant.

No. 11–4237.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 10, 2012.

Decided and Filed: Nov. 9, 2012.

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.

Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.^*

OPINION

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 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 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, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), and violates “the individual interest in avoiding disclosure of personal matters,” New York v. Ferber, 458 U.S. 747, 759 n. 10, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (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 demonstratethat 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, 112 S.Ct. 1867, 119 L.Ed.2d 34 (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 alsoRestatement (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., ––– U.S. ––––, 132 S.Ct. 2034, 2042, 182 L.Ed.2d 955 (2012). But Boland focuses 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”).

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...