By Michele C. Hladik
Record-Courier Capital Bureau
COLUMBUS -- Ohioans have the "repugnant" right to download virtual images depicting child pornography, the attorney for a Portage County man told the Ohio Supreme Court Wednesday.
The issue stems from the case of Roger Tooley Jr., who was convicted of two counts of illegal use of a minor in nudity-oriented material and three counts of pandering sexually oriented material involving a minor.
Police seized Tooley"s computer after he was implicated in a hacking incident at Kent State University involving the personal information of students. A search of the hard drive reportedly turned up hundreds of files containing pornographic images including some that appeared to depict minors.
Lakewood attorney Dean Boland told the high court Wednesday that federal rulings have shown it is not against the law to download virtual pictures.
He also said that while downloading virtual child pornography is "repugnant" the First Amendment protects the ability to do this and that no child is harmed because it is not a real child.
If the image isn"t committing a crime against a child there is no case, according to Boland.
Justice Evelyn Lundberg Stratton questioned on the First Amendment versus child protection.
"Basically your answer is, the right to protect the First Amendment is more important than protecting children," she said.
Boland people should not be prosecuted if it can"t be proven the image is of a real child.
During Tooley"s trial prosecutors brought witnesses who named a few of the children pictured and identified them as children found on a national database of child victim information.
Many of the charges were dismissed with the exception of the five counts for which he was convicted.
Portage County Prosecutor Victor Vigluicci, representing the Portage County Prosecutor"s office and the state, said virtual pornography was not proven in the Tooley case.
He told the court some would require the child be present during trial, but technology and the Internet make it hard to always provide the child at the trial.
"Its an impossible burden," he said.