The writer, Brian Dalton, is the first person in the United States to be arrested for writing about child pornography, as opposed to being involved in the production or distribution of child porn images. The stories were part of a journal that was discovered by his parents.
Dalton's lawyer argued that his client had never attempted to distribute or publish his child porn writings, and that the fact that the journal had been taken from his apartment was an invasion of privacy.
"This is the second court to decide that something was wrong in the first place," Dalton's lawyer stated. "What you write in your private notebook should not be the subject of prosecution."
Dalton was arrested in September for the writings, and according to the Associated Press (AP), he has been under house arrest at his parent's home ever since the indictment. Dalton has been on probation since 2001 when he was discovered in possession of child porn images. He was charged with pandering obscenity and pleaded guilty at the time.
According to the AP, in order for Dalton to fight the charges against his fiction writing, he and his lawyer sought to overturn his earlier guilty plea from three years ago, a request that was granted by the 10th Ohio District Court of Appeals in July 2003 on the basis that Dalton has received poor legal advice at the time of his first arrest.
Dalton's dismissal comes at the same time the Canadian government is grappling with a similar issue of whether to prosecute artists and writers that depict underage children in creative works.
A bill is being passed through the Canadian Parliament that would eliminate the legal defense previously known as "artistic merit" for artists and writers who are accused of producing child porn-related works of art.
"Artistic merit" has been part of the Canadian criminal code for the past 50 years, and according to reports, artists who are charged under Canada's child porn law will only be able to argue that their work serves the "public good" in order to avoid a conviction.
