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Judge's disallowance of journalist's First Amendment defense upheld

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    NMU         FOURTH CIRCUIT         Press at Home & Abroad         Apr 14, 2000    

Judge’s disallowance of journalist’s First Amendment defense upheld

  • Reporter Larry Matthews, arrested while working on a story on child pornography, lost his appeal of a federal judge’s decision that he would not be allowed to argue at trial a First Amendment defense to child pornography charges.

A journalist charged with violating child pornography laws while he researched a story did not have the right to argue before the jury that his activity deserved First Amendment protection, the U.S. Court of Appeals in Richmond (4th Cir.) held on April 13.

The ruling upheld the 18-month prison sentence that journalist Larry Matthews accepted in a March 1999 plea agreement after federal District Judge Alexander Williams Jr. in Greenbelt, Md., refused to allow him to assert a First Amendment defense at trial. As part of the agreement, Matthews pleaded guilty to two charges of transmitting and receiving child pornography in June

Matthews has asserted since being indicted for violating federal child pornography laws in 1997 that he was working on a freelance article and needed to pose online as a trader in child pornography to adequately research the article, and that such reporting is protected by the First Amendment. Matthews had previously prepared a story on child pornography for WTOP, a Washington, D.C., radio station.

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 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. 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, 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 weigh them 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.

(United States v. Matthews; Media Counsel: Beth Farber, Baltimore)

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