Court Reverses Ohio Man's 11-Year Prison Term for Sexually Explicit Diary

Affiliate: ACLU of Ohio
March 5, 2004 12:00 am

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COLUMBUS, OH – A Franklin County Common Pleas Court yesterday dismissed charges against a man who had been sentenced to 11 years in prison for recording fantasies of child molestation in a secret journal. The conviction of Brian Dalton in 2001 gained international attention as the first time in memory that an American had been sentenced to prison over the content of his private diary.

The American Civil Liberties Union of Ohio, which represented Dalton in his appeal and subsequent motion to dismiss the charges, hailed the ruling. “These charges should never have been brought,” said Gary Daniels, Litigation Coordinator for the ACLU of Ohio. “The writings, while disturbing and offensive, were purely fictional and never distributed, published or shared with anyone. The First Amendment guarantees that our most private thoughts are protected from government probing or prosecution.”

In dismissing charges against Dalton, Judge Cain of the Franklin County Common Pleas Court agreed, saying “ideas that run through one’s brain but no further cannot be the basis of a new criminal prosecution.” Judge Cain added: “The state is concerned that he may re-offend. But the judicial branch of government must resist the temptation to engage in preemptive strikes.”

Dalton was convicted in June 2001, having pled guilty after his trial lawyer advised him against presenting a First Amendment defense. The ACLU then stepped forward to defend Dalton, asking for a plea withdrawal on the grounds that his defense counsel provided ineffective representation by failing to raise the First Amendment defense. This motion was lost at trial court but was reversed by the 10th District Court of Appeals. Next, the ACLU moved to have the charges dismissed.

The diary entries for which Dalton was convicted involved depictions of sex with fictitious minor children. While child pornography is generally without First Amendment protection, the United States Supreme Court held last year that imaginary depictions of child erotica cannot be criminalized because their creation “records no crime and creates no victim.” That case, Ashcroft v. Free Speech Coalition, declared the federal Child Pornography Prevention Act unconstitutional, in large part because it criminalized the creation of “virtual pornography” involving youthful images.

The full decision can be read at

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