Guilty plea in Net porn case

A journalist has pleaded guilty to two counts of receiving and trafficking child pornography on the Net, a strategy his attorneys say will help them beat a federal ruling that prohibited him from using the First Amendment as a defense.

As reported in April, veteran radio reporter Larry Matthews says he obtained child pornography during a news investigation about the online trade of the illegal material. But federal investigators say his intent was irrelevant, and they dispute that he was acting as a journalist. The government charged Matthews with 15 counts of possessing and transmitting child pornography.

On Thursday, Matthews suffered a major blow when Judge Alexander Williams of the U.S. District Court in Maryland sided with prosecutors, stating that reporters can't sidestep the law to get a story.

The judge said Matthews was not entitled to present a First Amendment defense to a jury. "The law is clear that a press pass is not a license to break the law," Williams said in his ruling.

The Matthews case carries wide implications because if a conviction is upheld, the precedent could ultimately be applied to anyone who is researching online child pornography.

With their defense strategy out the window, his attorneys said they decided to enter a conditional plea. Matthews will be sentenced on December 11 and could face up to 15 years in prison and more than $250,000 in fines.

"Going in to Mr. Matthews's case we felt we had a singular defense--that his actions were protected by the First Amendment of the United States Constitution," lead defense attorney Michael Statham said today.

Lead defense attorney Michael Statham on the strategy

"Our strategy then had to focus on how we could get another opinion on the district court decision, meaning how quickly could we get this case appealed to the Fourth Circuit Court of Appeals," he added. "We felt the best way would be to enter a conditional plea."

If the Fourth Circuit Court of Appeals reverses the lower-court ruling suppressing Matthews's First Amendment defense, the journalist can then withdraw his conditional guilty plea and return to the lower court for trial, where he can present his whole story.

Attorneys want jurors to hear that Matthews, acting as a member of the press, engaged in trading child pornography on the Net to expose the boom in the practice and to criticize law enforcement for failing to crack down on the problem.

Matthews's attorneys point to two similar cases, such as one in which an FBI agent was allowed to argue a First Amendment defense when he was accused of trafficking child pornography while researching a book.

"In both of those instances, both of those individuals were allowed to [argue] protections of the First Amendment for what they were doing," Statham said.

Matthews's attorneys and free speech advocates worry that based on this case, psychiatrists, sociologists, professors, or even congressional staffers who are drafting legislation regarding the material could theoretically be charged with criminal activity for engaging in the practices for which Matthews was indicted, but not be able to explain their motives to a jury.

The American Civil Liberties Union of Maryland, National Public Radio, the American Federation of Television and Radio Artists, and the Radio-Television News Directors Association have filed legal briefs on Matthews's behalf, stating that he should have a right to present his defense, although they did not categorically defend his right to commit a crime.

"Matthews was in a hard position. You could read the judge's decision to say he couldn't even testify on his behalf--that could have violated the Fifth Amendment," said Kurt Wimmer, an attorney with Covington & Burling, who wrote the "friend of court" brief on behalf of the broadcasting organizations.

"We certainly hope the appellate court will recognize the First Amendment issues here," he added. "For a journalist to be charged like this, and not get a chance to make a fair defense, is very serious."

The U.S. District Attorney's Office in Maryland countered the defense on grounds that it could block the prosecution of pedophiles who have any such credentials.

In 1995, Matthews, who has worked as an editor for National Public Radio, produced a three-part series on the explosion of child porn on the Net for WTOP radio in Washington. In 1996 he continued his investigation, and even tipped the FBI off to one woman he said was peddling her kids on the Net, according to court briefs.

The 54-year-old journalist's ultimate goal was to sell a magazine article about children being prostituted on the Net and law enforcement's track record for dealing with the problem, his attorneys say.