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First Amendment defense not allowed in pornography prosecution

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MARYLAND--A radio reporter pleaded guilty to two counts of receiving and transporting child pornography in early July, after a federal…

MARYLAND–A radio reporter pleaded guilty to two counts of receiving and transporting child pornography in early July, after a federal district judge in Greenbelt refused to allow him to defend himself by claiming that his actions should be protected by the First Amendment because he was researching a news story.

Larry Matthews, currently a business correspondent for National Public Radio, argued that he sent and received pornographic images of minors in the course of researching a freelance story on the availability of “kiddie porn” on the Internet and government efforts to police it. Judge Alexander Williams held that Matthews’ motive could not be used as a defense because the law prohibits any deliberate reception or transmission of such material regardless of the reason for such trafficking.

The case was scheduled to go to trial in early July, but Matthews conditionally pleaded guilty to one of 11 counts of receiving and one of four counts of transporting pornographic depictions of minors. The conditional plea allows Matthews to appeal the court’s decision to exclude his defense after he is sentenced. He remains free at least until his sentencing hearing in December.

Though Williams’ opinion denying Matthews’ defense recognized that the First Amendment provides at least some protection for news gathering, the judge held that the Constitution did not protect Matthews’ activities.

“Although the Court agrees that the press cannot rely on the government to disclose its own wrongdoing, it fails to see how this leads to the conclusion that the Defendant has a compelling need to transmit and receive child pornography,” Williams wrote. “If law enforcement officials are doing something improper in their investigations, the Court does not understand how Defendant would uncover that malfeasance by receiving and disseminating the material himself.”

Williams claimed to be “hesitant to give news gathering tips” but agreed with the prosecutors’ argument that Matthews could have researched his story using a variety of avenues that did not require violation of the law.

He then described some of the alternative newsgathering techniques Matthews could have considered, including studying the number of child pornography prosecutions, examining trial records and observing trials.

“Even assuming the Defendant’s ‘exploration’ would in some way advance his investigation, the degree to which a reporter gains knowledge about the general subject matter by committing his own violation is insignificant compared to the government’s interest in preventing the exploitation of children,” Williams held. (United States v. Matthews; Media Counsel: Michael Statham, Greenbelt)