Ohio Appeals Court Overturns First-Ever Conviction for Writings in Private Diary

Affiliate: ACLU of Ohio
July 17, 2003 12:00 am

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Case Sent Back to Trial Court Where First Amendment Issues Will Be Heard


COLUMBUS, OH — A state appeals court today reversed the conviction of Brian Dalton, who had been sentenced to 11 years in prison for recording fantasies of child molestation in a secret journal. The conviction gained international attention as the first time 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, hailed the ruling, saying that it paves the way for challenging the application of Ohio’s obscenity laws to private works of fiction.

“”Brian Dalton’s conviction raised the darkly chilling case of a man punished not for what he did, but for what he thought,”” said ACLU of Ohio Legal Director Raymond Vasvari. “”However disturbing his ideas, in America, every person is entitled to record his thoughts without the fear of prison.””

ACLU of Ohio volunteer attorney Benson Wolman, who was part of a team of ACLU lawyers who handled the appeal, praised the decision as a chance to address the free speech issues at the core of the case. “”Brian Dalton was convicted of conduct which the First Amendment protects. Now, with the procedural issues raised by his mistaken plea behind us, we can present the trial court with the constitutional issues so important to his case.””

Dalton was convicted in June 2001. He pled guilty after his trial lawyer advised him against presenting a First Amendment defense. The ACLU then stepped forward to defend him on appeal. The opinion issued today holds that Dalton did not have the benefit of effective counsel at trial. He is now permitted to withdraw his guilty plea and present a First Amendment defense in a new trial, ordered by the Court of Appeals.

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.

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