by Susan Lehman, email@example.com
Larry Matthews' 18-month sentence for receiving and transmitting kiddie porn raises difficult first amendment issues.
As Janet Malcolm's tangle with Jeffrey Masson (and the law) proved, it's not always a good idea for journalists to hold onto their working notes. On the other hand, Larry Matthews' misadventure with federal law indicates that you should hold onto your notes -- but you might want to get rid of that old hard drive.
Matthews is the 32-year veteran radio reporter and National Public Radio editor who was sentenced Monday to 18 months in federal prison for distributing kiddie porn on the Internet. Matthews, who pleaded guilty to receiving images and transmitting a pornographic image, says he was reporting a story. Prosecutors essentially said, "So what? Matthews broke the law -- lock him up." Unfortunately for Matthews -- and his defenders argue, for the First Amendment -- Judge Alexander Williams Jr. agreed with prosecutors and told Matthews he could not tell jurors about the reportorial context in which his relationship with online pornography took place.
The facts in the case are not in dispute. Matthews says he began visiting kiddie porn chat rooms in 1995 (using the name "Mr. Mature") while working on a three-part series on the subject for Washington's WTOP radio, where he was a reporter. Matthews himself alerted authorities to his activities when he contacted the FBI and encouraged them to investigate a vile discovery he'd made while conducting his undercover online investigation: the presence of a woman apparently willing to sell her children for sex. Matthews started working as a full-time freelancer in June 1996; he says he resumed his investigation then with an eye toward producing another story on the subject. But his investigation was cut short in December when federal agents came to his home, seized his computer and accused him of violating newly enacted federal child pornography laws.
"The law was Orrin Hatch's baby. It was enacted just before Matthews was indicted", says Jane Kirtley, executive director of the Reporter's Committee for Freedom of the Press. "My suspicion is that Larry Matthews was identified as a test case." For Kirtley and other First Amendment defenders involved in the Matthews case, the question is: Do journalists enjoy any kind of constitutional protection when, in the course of their work, they engage in illicit activity?
"Sometimes journalism requires people to involve themselves in unsavory activities. You can't, for example, write a story, at least not a good story, about the Mafia without contacting the Mafia", says Art Spitzer of the American Civil Liberties Union, which filed an amicus brief in Matthews' defense. Spitzer acknowledges that the Matthews case is "not the easiest case in the world"; as he says, "Obviously someone can't rob a bank in order to write about bank robberies." The distinguishing fact here, says Spitzer, is that Matthews wasn't accused of having harmed anyone, even of touching anyone -- he was simply accused of communicating. "We think that under the First Amendment, someone acting as a bona fide journalist has a right to communicate even if that communication involves something the government doesn't like", says Spitzer.
The question of whether Matthews was a smut lover or an upstanding journalist was foreclosed when the judge ruled out a First Amendment defense -- in effect, ruling that nothing could have made Matthews' actions legal. But those involved in the case hold strong and opposing opinions. "I don't know whether he is a pedophile or not, but our belief when we went through our investigation was that he was not acting as a reporter", says U.S. attorney Stephen Schenning. Schenning dismisses suggestions that the Matthews case was a test of any kind: "I tell you truly we weren't out to get a journalist." The fact, which the judge in the case pointed out, that Matthews had no notes and no interviews after researching the subject for nearly two years raises questions.
But Vanity Fair contributing editor Ann Louise Bardach, who testified as an expert witness on reportorial technique at Matthews' sentencing, says she did a lot of research on Matthews and thinks he is as clean as a whistle. "From his ex-wives and children to NPR reporter Nina Totenberg, no one had a bad thing to say about the guy", says Bardach. She says the fact that Matthews went to the FBI and said, "Terrible things are happening out there, you've got to do something", was a compelling indication his interest in pornography was reportorial, not prurient. "I mean, unless the guy is Raskolnikov ..." (Raskolnikov is the murderous protagonist of "Crime and Punishment", who professes his innocence to the police.)
Matthews' lawyer, federal public defender Beth Farber, says she'll file an appeal by next week. An appellate decision on whether journalists enjoy some kind of protection when investigating illicit material, and whether Judge Williams erroneously foreclosed Matthews' First Amendment defense, could be handed down before the end of the year.
Whatever the Fourth Circuit decides, the Matthews case provides some practical tips for working journalists.
First: Freelancers, make sure you have contracts or commitment letters before investigating illicit subjects. "The Government is not challenging the work I did at WTOP, though it was identical to the work I did as a freelancer", says Matthews. Clearly the fact that Matthews didn't have any outstanding assignments, or any notes, made it easier for prosecutors and the judge to believe he wasn't lurking around in chat rooms in a reportorial capacity.
Second: Chuck any computers and porn-rich, or otherwise incriminating, hard drives that might be lying around. The ACLU's Spitzer points out that Matthews says he deleted illegal images he received from the Internet. "The FBI was only able to retrieve them by doing the fancy magic stuff they do with computers that allows them to retrieve deleted materials. It's almost as if the FBI went to a landfill to get evidence with which to indict Matthews", says Spitzer. "The moral of the story: Journalists should get some program that really erases hard drives."