TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 3 ARGUMENT 4 I. The First Amendment mandates recognition of a newsgathering defense to prosecutions for violations of statutes that affect constitutionally protected activity when that activity did not cause the harm that the statute was designed to address. 4 A. Newsgathering is protected under the First Amendment, and that protection must provide a limited defense in criminal prosecutions involving newsgathering. 4 B. Recognition of a newsgathering defense is simply not tantamount to granting a "license" to break the law. Individuals are not exempt from generally applicable laws that have an incidental effect on protected activities; but by the same token, if the effect is more than incidental, First Amendment protections apply. 7 C. A First Amendment defense is properly raised at trial. 13 D. This defense would not cause any "harms" and in fact, would serve the public interest by benefitting those who seek to expose crimes in the first place. 14 CONCLUSION 18 TABLE OF AUTHORITIES Cases Boddie v. ABC, 881 F.2d 267 (6th Cir. 1989) 5 Branzburg v. Hayes, 408 U.S. 665 (1972) 5, 8-10 Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980) 5 California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998) 5 Cohen v. Cowles Media Co., 501 U.S. 663 (1991) 7-12 Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920 (5th Cir. 1996) 5 Desnick v. American Broadcasting Cos., Inc., 44 F.3d 1345 (7th Cir. 1995) 15 Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) 6 Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) 5, 8, 9, 12 Idaho v. Hail, No. 16075 (Shoshone County Dist. Ct. complaint dismissed Oct. 12, 1984) 16 Mapp v. Ohio, 367 U.S. 643 (1961) 9 Marcus v. Search Warrant, 367 U.S. 717 (1961) 7 NAACP v. Button, 371 U.S. 415 (1963) 7 New York v. Santana, No. 9-Q-064698 (N.Y. Sup. Ct. complaint dismissed Feb. 1, 1989) 18 New York v. Wallace, No. 9-Q-064699 (N.Y. Sup. Ct. complaint dismissed Feb. 1, 1989) 18 Publicker Indus. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984) 5 Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) 5 Stahl v. Oklahoma, 665 P.2d 839 (Okla. Crim. App. 1983), cert. denied, 104 S.Ct. 973 (1984) 15-16 State v. Smithwick, No. 77 CR 15106 (N.C. Gen. Ct., Crim. Div. Davidson County Nov. 30, 1977) 17 State v. Garner, No. 77 CR 15107 (N.C. Gen. Ct. Crim. Div. Davidson County Nov. 30, 1977) 17 United States v. Chaillou, No. 89-11M-2 (E.D.N.Y. filed Jan. 5, 1989, dismissed Aug. 16, 1994) 17 United States v. Frankel, No. 89-11M-1 (E.D.N.Y. complaint filed Jan. 5, 1989, dismissed Aug. 16, 1994) 17 United States v. Matthews, 209 F.3d 338 (4th Cir. 2000) 8, 13, 14 Statutes & Regulations 18 U.S.C. § 2252 (2000) (Protection of Children Against Sexual Exploitation Act) 1, 3, 7-8, 13, 18-19 28 C.F.R. 50.10 (2000) (Attorney General's "Policy with regard to the issuance of subpoenas to members of the news media") 5 Other Authority Air Security 'Tests' Net Arrests, The News Media and The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) Winter 1989 at 45 17 Ballot Box Scheme Nets Charges Against Reporters and Editors, The News Media And The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) January-February 1984 at 48 16 Newsmen Arrested for Fireworks Sales Probe, The News Media and The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) April 1978 at 44 17 No. 00-5605 Lawrence Charles Matthews, Petitioner, v. United States of America, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Brief Amici Curiae of The Reporters Committee for Freedom of the Press, National Public Radio, Inc., The Radio-Television News Directors Association, and the Society of Professional Journalists in support of Petitioner INTEREST OF AMICI CURIAE[1] Petitioner Lawrence Matthews argues in the first question raised in his petition for certiorari that the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252, must include an exception for certain uses of otherwise lawfully outlawed material. Amici agree with this argument, and file this brief to further develop a theory as to how journalists' interests can be protected by a First Amendment defense, even when their actions may technically violate a valid criminal statute. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. National Public Radio, Inc. is the leading radio newsgathering organization in the United States. It produces and distributes news and informational programs, including Morning Edition, All Things Considered, and Talk of the Nation. NPR news programs are broadcast to millions of listeners every day through over 600 member and affiliated public radio stations throughout the United States. NPR as a non-profit membership corporation is also charged with representing the interests of its member stations, which are news organizations for their local communities, on matters affecting newsgathering and other issues of law and public policy. The Radio-Television News Directors Association is a professional organization comprised of local and network news executives, educators, students and others in the radio, television and cable news business and is devoted to electronic journalism. The Society of Professional Journalists is dedicated to improving and protecting journalism. It is the nation's largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press. All parties consented to the filing of this brief. The letters of consent have been filed with the Clerk of the Court. SUMMARY OF THE ARGUMENT Amici urge the Court to grant review of the conviction of journalist Lawrence Matthews under the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252. At the time of his arrest, Matthews alleges he was working on a story about child pornography, a subject he had tackled before in broadcasts for a news radio station for which he worked. Matthews' actions in researching the story, namely trading images with others online to gain their confidence, violated the Act. When an individual engaged in a constitutionally protected activity, such as newsgathering, violates an otherwise valid law that affects that activity, but does not cause the harm meant to be proscribed by the statute, he should be able to argue at trial that his actions were protected by the First Amendment. Matthews was not able to make that argument; the federal judge presiding at his trial forbade him to raise First Amendment issues. Matthews argues in the first question raised in his petition for certiorari that § 2252 must include an exception for certain uses of otherwise lawfully banned material. Amici agree with this argument, and file this brief to further develop a theory as to how journalists' interests can be protected by a First Amendment defense, when their actions may technically violate a statute but do not cause the harm meant to be protected. Such a defense would not constitute a "privilege" or a "license" to violate the law, as the Fourth Circuit suggested, because the question of whether it applied would be considered by the trier of fact, not the judge. And subjecting any individual to a trial, with the hope that the jury finds in his favor, simply cannot be equated to a license to break the law. This defense also recognizes the fact that journalists are not exempt from generally applicable laws that incidentally affect newsgathering, whereas in the present case the effect is much more direct. In addition, such a defense can properly be viewed as an element of the scienter requirement for conviction generally under the criminal statute Matthews was convicted of violating. Allowing such a defense would serve the public interest. In instances where journalists have been arrested for criminal violations and would use such a defense, their actions have typically been to expose the wrongdoing of others, and not to benefit from the actions themselves. ARGUMENT I. The First Amendment mandates recognition of a newsgathering defense to prosecutions for violations of statutes that affect constitutionally protected activity when that activity did not cause the harm that the statute was designed to address. A. Newsgathering is protected under the First Amendment, and that protection must provide a limited defense in criminal prosecutions involving newsgathering. Newsgathering merits some degree of protection under the First Amendment. The guarantee of press freedom is meaningless if journalists do not possess a concomitant right to gather the news. As the Justice Department has long acknowledged: Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. 28 C.F.R. 50.10 (2000) (Attorney General's "Policy with regard to the issuance of subpoenas to members of the news media"). This Court's holding that "without some protection for seeking out the news, freedom of the press could be eviscerated," Branzburg v. Hayes, 408 U.S. 665, 707 (1972), has subsequently been cited repeatedly by federal circuit courts,[2] and was cited by this Court in determining that the public has a presumptive right of access to criminal trials. Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980). But this widely acknowledged, constitutionally protected right to gather the news has remained poorly defined, leaving journalists with no clear understanding of its parameters. Courts have usually invoked the Branzburg standard to acknowledge that the First Amendment must apply in some way, but then decide a much narrower issue: do First Amendment interests create a right to attend court proceedings; to interview prison inmates; to avoid newsroom search warrants? And as important as the holdings in some of these areas have been in establishing a right of greater access to newsworthy public events, particularly criminal trials, a much more serious application of the standard remains unexplored: to what extent does the First Amendment protect a journalist who violates the law in pursuit of a story? In most cases, there is an easy answer: Journalists do not have a license to break the law, and laws of general applicability do not necessarily offend the First Amendment when applied to the news media. Amici do not propose that such a broad license be granted, either generally or in the present case. Instead, amici propose the following: When an individual engaged in constitutionally protected activity, such as newsgathering, violates a law that directly affects that protected activity, and the violation does not cause the harm the law seeks to proscribe, that individual should be allowed to argue at trial as an affirmative defense that the First Amendment protects his actions. This standard is necessary because laws that do not affect constitutionally protected actions sufficiently to be declared unconstitutional may still have a chilling effect on expression. As Justice Souter has argued: Thus, "there is nothing talismanic about neutral laws of general applicability," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 901, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) (O'CONNOR, J., concurring in judgment), for such laws may restrict First Amendment rights just as effectively as those directed specifically at speech itself. Because I do not believe the fact of general applicability to be dispositive, I find it necessary to articulate, measure, and compare the competing interests involved in any given case to determine the legitimacy of burdening constitutional interests, and such has been the Court's recent practice in publication cases. Cohen v. Cowles Media, 501 U.S. 663, 677 (1991) (J. Souter, dissenting). Although the § 2252 prohibitions on trafficking in child pornography on the Internet serve an important interest, the statute cannot be exempt from the First Amendment. No statute exists outside the parameters of the Constitution. See Marcus v. Search Warrant, 367 U.S. 717, 731 (1961) (holding that no state is "free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech"). Application of § 2252 to a journalist engaged in the constitutionally protected act of newsgathering who has not caused the harm targeted by the law -- exploitation of children for pornographic purposes -- demands careful balancing of competing interests because constitutional freedoms "are delicate and vulnerable, as well as supremely precious in our society" and "need breathing space to survive." NAACP v. Button, 371 U.S. 415, 433 (1963). B. Recognition of a newsgathering defense is simply not tantamount to granting a "license" to break the law. Individuals are not exempt from generally applicable laws that have an incidental effect on protected activities; but by the same token, if the effect is more than incidental, First Amendment protections apply. Amici argue here, as they did before the Fourth Circuit, that Matthews should have been able to tell the jury that his purpose in trading images was to gain information for a story on the prevalence of child pornography on the Internet and law enforcement efforts to combat it. The Fourth Circuit interpreted this as a journalistic exemption from law enforcement, or a license to violate the law: Matthews clarified at oral argument that he does not claim that a journalist engaged in news gathering activities is entitled to any special exemption from § 2252, not available to others. One of Matthews' amici, however, does seem to make this contention. See Brief of the Reporters Committee for Freedom of the Press at 5-6 ("Strict application of these [criminal] statutory provisions to news gathering, even if they are otherwise valid, can unconstitutionally burden the right of journalists to gather the news."). Amici's argument is ill-advised. Although the First Amendment protects "news gathering" activities, it does not "confer[ ] a license on either the reporter or his news sources to violate valid criminal laws." Branzburg v. Hayes, 408 U.S. 665, 691, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972). The Supreme Court has expressly instructed that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen v. Cowles Media Co., 501 U.S. 663, 669, 115 L. Ed. 2d 586, 111 S. Ct. 2513 (1991); see also Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999). United States v. Matthews, 209 F.3d 338, 344 (note 3) (4th Cir. 2000). Amici wish to reiterate that they have not proposed such a sweeping exemption, privilege or license. The right to raise a defense before a jury during a criminal prosecution is no "license." A journalist seeking to use such a defense would still be arrested, criminally charged, possibly detained, and required to prepare a defense at trial. Such a scenario can hardly be termed a "special exemption" from the law. Admittedly, the true benefit of such a defense would be in how it plays into the government's decision to prosecute a crime; prosecutors may be more willing to avoid a trial if they know a journalist's violation did not cause harm and served a public interest purpose. But again, this does not constitute a license to violate the law; it simply recognizes that prosecution in very limited circumstances may not serve the public interest. Recognition of such a First Amendment defense would not grant journalists a "license" to break the law, and is similar to saying that criminal defendants are given a "license" to break the law by the Fourth Amendment's protections again unreasonable searches and the resultant exclusion from a criminal trial of evidence obtained through such searches. See Mapp v. Ohio, 367 U.S. 643 (1961). Furthermore, the cases to which the Fourth Circuit cited to establish the proposition that journalists are not exempt from the law -- Branzburg, Cohen and Food Lion -- are not persuasive in denying journalists the right to present a First Amendment defense at trial when the law at issue has a direct effect on a journalist's research on a controversial issue. The Branzburg court emphatically stated that the First Amendment does not grant a license to break the law, but its holding was narrowed in two significant ways. First, the court emphasized that laws are not necessarily unconstitutional "because their enforcement against the press has incidental effects on its ability to gather and report the news." Branzburg at 669 (emphasis added). The law at issue there concerned the responsibility of citizens to testify before grand juries when they possess evidence of or have witnessed a crime. The court found that, for instance, the plaintiff who had witnessed activities of the Black Panthers was not being restrained from reporting on those activities, kept from observing the acts in the first place, or prosecuted for participating in any illegal acts, and so the law mandating that he, as a citizen, testify before a grand jury was incidental to his newsgathering. The court explains how the requirements imposed on the journalists before the Court were incidental: But these cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. Branzburg at 681 (emphasis added). It hardly seems controversial to suggest that if the reporters before the Court were being prosecuted for their newsgathering activities, rather than being compelled to testify, the determination of the degree of protection afforded under the First Amendment would have been different. Secondly, the Court made clear that its opposition to the notion of a journalistic "license" to break the law stemmed from a strong belief that journalists should not be able to cause harm and claim an exemption: The [First] Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. Branzburg at 691. Under the articulation of the First Amendment defense presented by amici, reporters would not be shielded when they "invade the rights of other citizens." As stated earlier, the defense would only be available when the conduct does not cause the harm that the law was meant to protect against. An examination of Cohen leads to a similar conclusion. The Cohen Court found: The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. Similarly, the media must obey the National Labor Relations Act and the Fair Labor Standards Act; may not restrain trade in violation of the antitrust laws; and must pay non-discriminatory taxes. It is, therefore, beyond dispute that "the publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Cohen at 669 (internal cites omitted). The scenarios discussed by the Court involve incidents where the impact on the press is only incidental to its newsgathering role, such as application of labor and tax laws. The Court was asked to consider whether the First Amendment precluded enforcement of the Minnesota doctrine of promissory estoppel against the news media when a newspaper revealed the name of a source it had promised to keep confidential. In distinguishing this from cases involving restraints on publication, the Court held: Here, by contrast, Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions that may be placed on the publication of truthful information are self-imposed. Cohen at 670. Clearly, Matthews was not free to "determine the scope" of his legal obligations, and his criminal sentence was not "self-imposed." Cohen simply does not address the degree of protection afforded by the First Amendment in criminal prosecutions. Similarly, Food Lion provides no support for denying Matthews the right to argue a First Amendment defense before a jury. Relying on the analysis in Cohen (which it identifies as Cowles), the Fourth Circuit held: The torts [the ABC producers] committed, breach of the duty of loyalty and trespass, fit neatly into the Cowles framework. Neither tort targets or singles out the press. . . . Nor do we believe that applying these laws against the media will have more than an "incidental effect" on newsgathering. See Cowles, 501 U.S. at 669, 671-72. We are convinced that the media can do its important job effectively without resort to the commission of run-of-the-mill torts. Food Lion at 521. As with the Branzburg and Cohen courts, the Food Lion court's decision not to apply First Amendment scrutiny clearly turns on the "incidental effect" of the law on newsgathering. In addition, the court specifically found that the ABC producers had caused the harm meant to be avoided by the torts of trespass and breach of duty of loyalty, but damages from that harm were nominal, totaling two dollars. Food Lion at 524. And while the media may be able to report on food handling procedures without getting jobs at grocery stores and thereby violating "run-of-the-mill" torts, it is not as clear that a reporter can examine the prevalence of child pornography online and efforts at enforcing the law without risking running afoul of laws criminalizing the possession of such material. In fact, the primary reason Matthews seeks recognition of a First Amendment defense is that so he can argue at trial that the method he used is the only way to truly report the type of story he wanted to report. Matthews at 340. C. A First Amendment defense is properly raised at trial. The Fourth Circuit's hesitation with allowing a First Amendment defense to be raised at trial seems to be primarily procedural: Matthews and his amici present powerful rhetoric urging that he (and anyone else asserting such a defense) be allowed to present this defense to a jury. Let the jury decide, they argue: if the jury concludes that Matthews traded in pornography solely for a proper purpose, then the First Amendment prevents conviction; if the jury concludes that he acted for another purpose, then conviction is appropriate. The argument has visceral appeal. One of our bedrock principles is that every man deserves his day in court and the opportunity to have a jury consider his best defense. But the law does not permit a defendant to present a defense unless the law recognizes that defense. Matthews at 344. What the court does not address is that the law can recognize a First Amendment "defense" by requiring that the mens rea necessary for a conviction under § 2252 include an intent to accomplish the goal or gain the benefit barred by the statute -- but again, only in those situations where the journalist did not cause harm and the law directly affected newsgathering. Therefore, a journalist seeking to expose illegal activity who then technically violates the law could argue to the jury that the activities he engaged in while gathering news were protected by the First Amendment because he did not have the necessary mens rea. The Fourth Circuit recognized that "some level of scienter" was required for a conviction under the statute: Section 2252 "requires the government to prove that a defendant knew that he was transporting or receiving depictions of a sexually explicit nature and that the individuals depicted were minors." Matthews at 350. But when constitutionally protected activity is concerned, it seems appropriate to acknowledge that this "knowledge" requirement must include some degree of an intent to gain the benefit or accomplish the objective proscribed by the law. A journalist seeking to expose illegal activity surely does not have the same "intent," and arguably does not have the same level of "knowledge" of the violation of the law, as someone who simply trades in child pornography. D. This defense would not cause any "harms" and in fact, would serve the public interest by benefitting those who seek to expose crimes in the first place. It is tempting to initially accept the Fourth Circuit's logic that recognizing this defense would in effect create greater harm and run counter to the public interest by allowing a class of individuals to undertake the proscribed activity. But even if we ignore the fact that a defense at trial would hardly lead others to believe they have a license to engage in such activity (discussed supra at 7-9), it is important to realize that the proposed defense would only be applied in situations where the journalist's actions do not cause the harm addressed by the law. The typical application of the defense would come in cases where journalists have either unknowingly violated the law or found it necessary, as a last resort, to employ newsgathering techniques that technically violate statutory provisions in order to obtain information of compelling public interest. Strict application of these statutory provisions to newsgathering, without allowance for a First Amendment defense, can unconstitutionally burden the right of journalists to gather the news. At least one appellate court has held that when the interests protected by tort laws were not adversely affected by a journalist's newsgathering actions, which themselves might be construed as tortious, the journalist would not be liable for the violation. Desnick v. American Broadcasting Cos., Inc., 44 F.3d 1345 (7th Cir. 1995). A news show segment on Medicare fraud included information obtained from individuals who posed as patients and entered an eye clinic with hidden cameras. The Seventh Circuit rejected the doctors' trespass and invasion of privacy claims, finding that the entry "was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land." Id. at 1352-1353. The same principle should apply when newsgathering implicates criminal laws, as one dissenting judge found in an Oklahoma case where nine journalists were charged with trespassing while covering a protest. The judge noted that the journalists posed no threat to public order or to the private property rights that the criminal trespass statute aimed to protect and concluded that prosecuting the journalists was unconstitutional: I would not permit our criminal trespass statute to be used illegitimately and in this manner in order to prevent the public from knowing what their government is doing. . . . It is inconceivable to me that a contrary conclusion can be sanctioned in our democratic society. Stahl v. Oklahoma, 665 P.2d 839, 849 (Okla. Crim. App. 1983)(Brett, J., dissenting), cert. denied, 104 S.Ct. 973 (1984). Judge Brett did not conclude that journalists could claim an absolute right to cross any property lines they chose in pursuit of a news story. Rather, he recognized that the public interest demands that the constitutionally protected act of newsgathering be taken into account when statutory prohibitions are applied to members of the news media. Under certain rare circumstances, the only available means to test law enforcement is to directly challenge the barriers imposed by criminal statutes. The following examples illustrate how journalists seeking information about matters of public interest have had to resort to technical violations of a law in order to gather that information first-hand: Recognizing that simply approaching election officials for information about voting fraud would not tell the whole story, a journalist in Idaho successfully registered and voted five times in the same school district trustee election -- casting blank ballots all but one time -- and then wrote an article about it. As a result of the journalist's activity, the infirmities of an electoral process were exposed both to the public and to the government itself. But the article also alerted authorities to the journalist's activities, and he was charged with registering to vote illegally. His editor also was charged with inducing him to break the law. Shortly before trial in October 1983, the judge dismissed the complaints. Idaho v. Hail, No. 16075 (Dist. Ct. complaint dismissed Oct. 12, 1984 Shoshone County); see also Ballot Box Scheme Nets Charges Against Reporters and Editors, The News Media And The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) January-February 1984 at 48. In 1977, WFMY-TV in Greensboro, N.C., aired a story on a local toy store that openly displayed illegal fireworks on a sales counter. A reporter and a cameraman went to the store, purchased fireworks, then turned them over to sheriff's deputies, who arrested the toy store's owner for illegally possessing and selling fireworks. The journalists filmed the arrest, and WFMY featured it on its 6 p.m. news show. The journalists subsequently were charged with illegally purchasing and possessing fireworks. Their attorney asserted that they had not intended to violate the law, but rather had intended to expose possible violations of the law. See Newsmen Arrested for Fireworks Sales Probe, The News Media and The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) April 1978 at 44. A jury agreed in March 1978 and found the journalists not guilty. State v. Smithwick, No. 77 CR 15106 (N.C. Gen. Ct., Crim. Div. Davidson County Nov. 30, 1977); State v. Garner, No. 77 CR 15107 (N.C. Gen. Ct. Crim. Div. Davidson County Nov. 30, 1977). Shortly after the bombing of Pan Am Flight 103 in 1988, two journalists attempted to ship packages containing fake bombs through three different airlines to test airport security. The packages were delivered to Pan Am, TWA, and Air France at Kennedy International Airport. Police seized the packages checked with TWA and Pan Am, but the package delivered to Air France was not stopped by authorities. See Air Security 'Tests' Net Arrests, The News Media and The Law (The Reporters Committee for Freedom of the Press, Washington, D.C.) Winter 1989 at 45. The journalists were charged with conspiring to lie to airport personnel about the contents of the packages, but the journalists asserted through their lawyer that they never intended to violate the law. United States v. Chaillou, No. 89-11M-2 (E.D.N.Y. complaint filed Jan. 5, 1989, dismissed Aug. 16, 1994); United States v. Frankel, No. 89-11M-1 (E.D.N.Y. complaint filed Jan. 5, 1989, dismissed Aug. 16, 1994). Also shortly after the Pan Am Flight 103 bombing, an ABC reporter and cameraman who were researching a similar story on airport security were arrested for trespassing after they purposely entered a restricted area on the tarmac at Kennedy International Airport to see if they would be stopped. The charges against them ultimately were dismissed. New York v. Santana, No. 9-Q-064698 (N.Y. Sup. Ct. complaint dismissed Feb. 1, 1989); New York v. Wallace, No. 9-Q-064699 (N.Y. Sup. Ct. complaint dismissed Feb. 1, 1989). In all of these situations, journalists undertook activities that technically violated the law. They neither received "benefits" as a result of the violations, nor did their acts cause the harm the statutes meant to prevent. Instead, the stories revealed information of vital interest to the public that could have been obtained no other way. Without making that initial decision to step beyond statutory bounds in pursuit of stories of vital public interest, these journalists would have failed in their roles as government watchdogs for the public. CONCLUSION No criminal statute can be exempt from the protections of the First Amendment. When applied to journalists engaged in newsgathering, strict application of a criminal statute often will fail to advance the interest the government intends to protect. The free flow of information to the public is vital to democracy. The public has a strong interest in knowing both about the prevalence of child pornography on the Internet, and about law enforcement efforts to eradicate it. Arguably, the most effective way to report on these issues is to gain access to the Internet to observe these matters first-hand. Matthews contends that he was doing just that -- engaging in constitutionally protected newsgathering -- when he was charged with violating § 2252(a). If his assertions are true, strict application of the statute here would violate the First Amendment. Matthews should be given the opportunity to present his newsgathering defense for consideration by the triers of fact in this case. Otherwise, strict application of the statute in these circumstances will not only fail to serve the government's goal of eliminating electronic trafficking in child pornography, it will violate the First Amendment's guarantee of a free press and an informed public. And in a situation like that in the case before the Court, where the journalist's work concerned a matter of great public importance -- the exploitation of children in the production of child pornography -- and where lawmakers are making the laws even more strict in order to fight such exploitation, it becomes imperative that those who tackle these issues in the name of the public interest be allowed to fully and fairly defend themselves at trial. Therefore, amici ask this Court to accept the petition and hear argument on whether to grant a new trial to allow Matthews to present a First Amendment defense to the charges brought against him.   Gregg P. Leslie, Esq. Counsel of Record Lucy A. Dalglish, Esq. The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Dr., Suite 900 Arlington, Virginia 22209 (703) 807-2100 September 11, 2000 Of Counsel: Counsel for National Public Radio, Inc: Neal A. Jackson, Esq. Vice President for Legal Affairs, General Counsel and Secretary Denise Leary, Esq. Deputy General Counsel National Public Radio, Inc 635 Massachusetts Ave. NW Washington, DC 20001-3753 Counsel for The Radio-Television News Directors Association: Kathleen A. Kirby, Esq. Wiley, Rein & Fielding 1776 K Street NW Washington, D.C. 20006 (202) 429-7000 Counsel for Society of Professional Journalists: Bruce W. Sanford, Esq. Robert D. Lystad, Esq. Bruce D. Brown, Esq. Baker & Hostetler LLP 1050 Connecticut Avenue NW Suite 1100 Washington, D.C. 20036 Footnotes: 1. In compliance with Supreme Court Rule 37.6, counsel for amici curiae state that they authored this brief in total with no assistance from the parties. Additionally, no individuals or organizations other than the amici curiae made a monetary contribution to the preparation and submission of this brief. 2. See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); Publicker Indus. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999); Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920 (5th Cir. 1996); Boddie v. ABC, 881 F.2d 267 (6th Cir. 1989); California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998).