Contrary to popular belief in some journalistic circles, the First Amendment is not a license to break the law. Reporters who trespass, wiretap or violate other laws that apply to the public generally aren't immune from prosecution simply because they were gathering news at the time. The U.S. Supreme Court has said so repeatedly.
The government lawyers prosecuting freelance reporter Lawrence C. Matthews in federal court in Greenbelt, Maryland, relied on this principle to assert that Matthews violated the federal law forbidding trafficking in child pornography on the Internet. But they took the maxim a step further, contending that Matthews, 55, should be forbidden to argue at trial that he traded sexually explicit images of minors as research for a story.
Unfortunately, presiding U.S. District Judge Alexander Williams Jr. bought the government's argument that the First Amendment was irrelevant to this case and could not be used as a defense. Either Matthews had received and transmitted child pornography, or he had not. If he had, he broke the law, and his motivation for doing so simply did not figure into the analysis of the case, Williams ruled.
And although "hesitant to give news gathering tips," the judge suggested that Matthews could have legally obtained similar information by studying public records of child pornography prosecutions and by interviewing victims and convicts. These resources "would give at least as much insight into the scope of the problem as the reporter's own transactions on his home computer," Williams wrote in June.
Rather than submit to what would amount to a sham trial, Matthews pleaded guilty in July to the pornography charges. In March he was fined $4,000 and sentenced to 18 months in prison, the minimum time period under the federal sentencing guidelines. His lawyer, Beth M. Farber, filed an appeal with the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.
Probably no one but Matthews himself knows what he was up to when he started swapping kiddie porn under the name Mr. Mature. Although he had prepared a series in 1995 for WTOP-AM radio in Washington on the availability of child pornography on the Internet, Matthews was a freelance journalist the following year when he conversed online with undercover agents pretending to be young teenagers. Members of the FBI task force who raided his home in December 1996 found explicit images in deleted files on his computer hard drive.
Matthews claims he was planning to write a magazine article on the subject of online child pornography and on law enforcement sting operations. But he could produce no notes, drafts, contracts or even so much as a query letter to a publisher to back up his assertion. The prosecutors and the judge were skeptical.
After reviewing Matthews' nearly two years' worth of child pornography research, Williams asked at the sentencing hearing, "When was he going to start writing?" according to the Washington Post's account.
Matthews' saga should be a cautionary tale for freelance journalists who want to walk on the wild side to get a story. If you expect to assert any kind of journalistic privilege--including invoking a state shield law to protect your sources, for example--it would be prudent to line up some sort of evidence that you really are researching with an eye to publication.
In this case, even if Matthews had solid proof that he was doing his research for journalistic purposes, it's doubtful that would have saved him. The federal Child Pornography Prevention Act makes no exceptions for writers, researchers, anti-pornography crusaders, physicians or journalists, any of whom have at least an arguable justification for looking at this kind of stuff.
The law took effect in late September 1996, only a few weeks before the FBI task force raid. Matthews' case is the first instance of the government using this statute to prosecute someone claiming to be working as a journalist. The 4th Circuit will have to decide whether this statute exists in a sort of constitutional vacuum where the First Amendment is irrelevant to its interpretation. It might help if the court considered what the law is intended to prevent.
Presumably, that's sexual exploitation of young children. If that is the purpose of the statute, a journalist who enters the netherworld of child porn, to report on its prevalence on the Internet and on what law enforcement is doing to try to stop it, is rendering a public service. Such a reporter should be praised, not punished.
This is not to say that Matthews would be able to convince a jury that his child pornography "research" was intended to end up as a magazine story. But he should at least be given the opportunity to try.