First Amendment defense disallowed in porn case

From the Spring 2000 issue of The News Media & The Law, page 21.

A journalist who pleaded guilty to receiving and transmitting child pornography was properly denied the opportunity to argue before a jury that his actions were protected by the First Amendment, the U.S. Court of Appeals in Richmond (4th Cir.) held on April 13.

The child pornography law is constitutionally sound even without making allowances for any “acceptable” uses, the court found. The decision to deny him a new trial upholds the 18-month sentence handed down by a federal judge in March 1999.

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After federal agents entered his home and seized information from his personal computer in December 1996, journalist Larry Matthews was indicted by a federal grand jury in Greenbelt, Md., on charges of trafficking in pornographic images of children. He was charged with 11 counts of receiving and four counts of transmitting images of children in sexually explicit situations.

Matthews asked the court to dismiss the indictment. He contended that he was working on a freelance article about those who traffic in child pornography and the FBI agents who pursue them, and needed to pose online as a trader in child pornography to adequately research the article. Such reporting is protected by the First Amendment, he argued.

He argued that he sent and received child pornography over the Internet to develop relationships with others who trafficked in such materials so he could learn more about their activities for the story he planned to write.

Matthews also contended that because part of his investigation focused on the effectiveness of law enforcement efforts to curb child pornography on the Internet, he could not rely exclusively on information obtained from the same agencies he was investigating. Thus, he argued, his actions were a necessary part of his newsgathering and were protected by the First Amendment.

At the same time, federal prosecutors asked the court to forbid Matthews to raise the First Amendment as a defense at trial, arguing that it was not legally valid and would unnecessarily complicate the proceedings.

In June 1998, federal District Judge Alexander Williams decided not to dismiss the indictment against Matthews and held that Matthews would not be allowed to invoke the First Amendment as a defense at trial.

Williams wrote then that “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. 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.” (See NM&L, Winter 1998)

Matthews was scheduled to go on trial in July 1998, but he conditionally pleaded guilty to one count of receiving and one count of transporting pornographic depictions of minors. The conditional plea allows him to appeal the court’s decision to exclude his First Amendment defense now that he has been sentenced. (See NM&L, Summer 1998)

During Matthews’ sentencing hearing, several journalists testified that Matthews was a skilled, award-winning journalist, and that his research for this story was consistent with how he worked on previous stories. But after hearing the testimony, Williams found in March 1999 that even if a First Amendment defense were available, Matthews had failed to establish that he was researching an article. Matthews was given an 18-month sentence, which was stayed pending appeal. (See NM&L, Spring 1999)

On April 13, 2000, the U.S. Court of Appeals in Richmond (4th Cir.) held that Matthews did not have the right to argue before the jury that his activity deserved First Amendment protection.

The court dismissed Matthews’ First Amendment argument as “powerful rhetoric” that has “visceral appeal” but which is not a recognized defense under the law. While such a defense may work in a prosecution over adult pornography, it does not apply to child pornography, because the interest in protecting the sexual exploitation and abuse of children justifies greater limits on its distribution, the court held. The interest at stake in adult pornography cases — protecting “the sensibilities of unwilling recipients” — can be outweighed if a work has artistic, literary or other value, the court noted.

The court found no indication that Congress intended to allow a defense based on the use of such materials for a constitutionally protected purpose. Matthews had asserted that the legislative history of the statute showed that a separate “affirmative defense” amendment had been rejected as “unnecessary,” because a defendant could argue that material in some cases falls within the “tiny fraction of the materials within the statute’s reach” that the Supreme Court recognized should receive constitutional protection. That defense should be available to him in this case, Matthews argued.

But the court held that Congress had not adopted this view when it rejected the amendment. Instead, Congress “enacted a statute that would subject to criminal prosecution not only child pornography dealers, but also those who lack a profit motive, including individuals, like journalists, whose professional standing might help to disguise a fetish for such material,” according to the court.

The court also rejected Matthews’ argument that the statutory provision under which he was prosecuted violates his due process rights because it applies even if there is no criminal intent on the part of the accused. Proper application of the statute does not require that the defendant knew he was breaking the law or acted with bad motive or evil intent, the court held, but rather that he knowingly engaged in the activities that the statute criminalizes.

The Reporters Committee for Freedom of the Press, joined by the Radio-Television News Directors Association, National Public Radio, and the Society of Professional Journalists, had filed a friend-of-the-court brief arguing that when application of a criminal law, particular in a situation where the protected harm has not occurred, conflicts with constitutional rights, the court must give careful consideration to those rights and must allow the jury to weigh those interests against the need to enforce the statute in a given situation.

The court, framing this as an argument that journalists are entitled to a special exemption from the law, rejected it as “ill-advised” and noted that laws of general applicability can be applied against the news media without violating the First Amendment.