COLUMBUS, Ohio A state law that equates virtual child pornography with pornography involving real children is not unconstitutional or at odds with a U.S. Supreme Court ruling that protects computer-generated child porn, the Ohio Supreme Court ruled yesterday.
The court’s unanimous ruling in Ohio v. Tooley found that the reference in law to a virtually created image of child porn is only part of the evidence a jury would have to weigh when hearing charges of child pornography.
Roger Tooley, a Portage County man convicted of having child pornography on his computer, argued that real and virtual child porn are indistinguishable.
As a result, he argued, an individual can’t be convicted of child porn if he can’t tell the difference between actual children and child pornography created on a computer.
His attorney, Dean Boland, likened the situation to being charged with speeding without knowing what the speed limit was.
“You can’t convict someone for possessing an image that appears to be real,” he said yesterday. “Not good enough it has to be real.”
Tooley argued that Ohio’s law conflicted with the U.S. Supreme Court’s 2002 decision rejecting a federal law that banned virtual child pornography as unconstitutional.
In that decision, Ashcroft v. Free Speech Coalition, the Court ruled that virtual child pornography was protected speech under the First Amendment and could not be banned by child-pornography laws.
The state Supreme Court yesterday rejected Tooley’s argument and reinstated his conviction after it was thrown out by an appeals court. The justices said Ohio’s law doesn’t go as far as banning virtual child pornography.
Instead, the court called the law a way for a jury to consider whether a person in a photographic depiction of child pornography is really under age. Prosecutors still would have to prove beyond a reasonable doubt that a real child was used before winning a conviction, the court said.
The court also said that accepting Tooley’s arguments would hurt the prosecution of child pornography in Ohio.
“Unless the accused was present when the illicit image was ‘captured’ or the state was able to identify the actual child victim and have that victim testify, prosecutions would be impossible in cases where images are downloaded from the Internet,” Justice Judith Ann Lanziger wrote.
The Portage County prosecutor said the court ensured Ohio could continue to prosecute child pornography.
Otherwise, “the argument would be made in every case, ‘Show me the child, show me the real person,’” Prosecutor Victor Vigluicci said yesterday. “Well, obviously we can’t do that.”
Justice Evelyn Lundberg Stratton said she agreed with the court’s decisiyesterday but also said the U.S. Supreme Court was mistaken in its 2002 ruling.
That decision “turned the First Amendment upside down and will allow child pornography to flourish unabated,” Stratton wrote. “There are limits to First Amendment protections, and the right to possess virtual child pornography, in light of all the evidence of the damage it does to our children, should not be protected.”