Press tangled in child porn sting
The indictment of a journalist for trafficking in child porn while working on a story raises free speech concerns for many who study the Net.
The FBI's Innocent Images program in Baltimore, Maryland, uses a similar strategy, with agents lurking anonymously in chat rooms to catch adults who solicit minors or offer up child porn. Matthews apparently stepped in the middle of one such sting and was indicted last summer on 15 counts of possessing and transmitting child pornography.
Matthews says he was conducting research for a story. But the government argues that he wasn't acting as a journalist--and even if he was, prosecutors say, reporters do not have the right to sidestep the law.
The case carries wide implications because the government is asking the court to prohibit Matthews from using the First Amendment as a defense. The outcome could be applied to anyone who is researching online child pornography, according to Matthews's lawyer.
For example, psychiatrists, sociologists, professors, or even congressional staff who are drafting legislation regarding the material could theoretically be charged with criminal activity for engaging in the practices for which Matthews was indicted.
The American Civil Liberties Union of Maryland, National Public Radio, the American Federation of Television and Radio Artists, and Radio-Television News Directors Association have filed legal briefs on Matthews's behalf, although they did not categorically defend his right to commit a crime.
"In particular, newsgathering concerning the Internet activities of both wrongdoers and law enforcement officers could be severely handicapped if Matthews is not permitted to raise a First Amendment defense here," states the ACLU's support brief. "Thus, the court must carefully weigh the potential chilling effect of permitting federal agents to arrest and convict reporters who attempt to monitor the role of law enforcement on the Internet."
In legal briefs requesting that the case be dismissed, Matthews's attorney Leslie McAdoo-Brobson contends that her client has a First Amendment right to gather news, which includes confirming the existence of online child porn by accessing photos and hanging out in chat rooms where he claims people solicited sex with minors as well as buying and selling child pornography.
The U.S. District Attorney's Office in Maryland countered that such a defense has the potential to block the prosecution of pedophiles who have any number of credentials to hide behind. "If the defendant's position is a valid one, then someone claiming to be a member of the media seeking to gather information to write an article about drug dealing would be free to buy and sell drugs without fear of prosecution," stated the district attorney's office in a court brief.
"The bad news for journalists is that a press card is not a license to break the law," said James Wheaton, senior counsel and founder of the First Amendment Project. "Could a reporter order a child porn magazine, which is illegal, in order to prove how easy it was to get it? [Matthews] is right on that fence. But in order to tell the public about child porn he probably had to go find it and look at it."
Matthews's defense team contends that the federal statute prohibiting the distribution of and trafficking in child pornography was not created to broadly apply to investigative journalists. Attorney McAdoo-Brobson said the fact that he had published past stories on the subject proves that he was seeking Net child porn as part of an investigation, not to break the law.
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, according to McAdoo-Brobson, and even tipped the FBI off to one woman he said was peddling her kids on the Net.
The 31-year journalist's ultimate goal, McAdoo-Brobson said, was to sell a magazine article about children being prostituted on the Net, and law enforcement's track record for dealing with the problem.
Still, as the July hearing date approaches, Matthews is scrambling to sustain his First Amendment defense.
The Maryland District Attorney's Office declined to comment on the case, but it has asked the federal court in Greenbelt to "exclude any evidence, testimony, or argument regarding the defendant's alleged motive of gathering information to write an article."
Free speech advocates and journalists have launched a campaign to fight for Matthews's right to tell the future jury his side of the story.
"If reporters are prohibited from doing firsthand investigations of topics--no matter how controversial or distasteful--then that's a serious inhibition," said Barbara Cochran, president of the Radio-Television News Directors Association.
Journalists who shadow organized crime families or chronicle street gangs, for example, could easily become entangled in illegal activity. Although some states have "shield laws" to protect journalists from legal recourse for refusing to reveal sources, reporters often walk a fine line between the law and their First Amendment rights.
And the shield laws journalists employ to protect themselves do not apply to others who want to observe the same communities, such as academics or artists.
"If journalists are going to break the law in some fashion, they should do that with their eyes wide open," warns Dan Noyes, executive director of the Center for Investigative Reporting.
"Journalism is a constant balance of common sense, morality, and ethics," he added. "If you think on balance that it is more important to get the story, and to put yourself in jeopardy, then you make that judgment. It's good to consult a lawyer first to discuss what you are trying to do."
First Amendment experts say the court will likely allow Matthews's free speech defense.
"The jury should be able to decide whether he really legitimately was acting as a journalist or not. I think most judges would at least allow him to raise the defense," said Karl Olson, a First Amendment attorney with Levy, Ram, & Olson.
Wheaton of the First Amendment Project agreed. "For the prosecution, proving intent is as a matter of criminal law. It's absurd for them to try to bar him from stating his intent," he added. "I can't imagine how that would succeed."