The U.S. Court of Appeals for the Fourth Circuit ruled that a journalist accused of sending and receiving child pornography cannot defend himself with evidence that his acts were meant to further his research on a story regarding child predators on the Internet. United States v. Matthews, 209 F.3d 338 (4th Cir. 2000).

    The court of appeals decision that the First Amendment provides no defense to this criminal conviction upholds a sentence imposed by the U.S. District Court for the District of Maryland requiring journalist Lawrence Matthews to spend 18 months in jail. Matthews pled guilty to one count of receiving child pornography and one count of transmitting child pornography after the district court refused to allow the same proffered defense.

    The facts of this case are adequately related in an earlier version of this publication, The First Amendment and the Media - 1999 at 117, so they will be restated only briefly here. Lawrence Matthews is an award-winning journalist who had worked at a number of radio stations in the Washington, D.C., area. He had also written several print stories for local newspapers on a freelance basis. In 1995, while working as a reporter for radio station WTOP-AM, Matthews produced a three-part series highlighting the existence of child pornography on the Internet. During the course of his research for this story, Matthews contacted the Federal Bureau of Investigation (FBI) to inform the agency regarding the results of his research and to report that he had been in contact over the Internet with a woman who offered her two children for prostitution.

    Matthews left WTOP-AM in 1996 but continued to work on this issue for other media outlets. He remained in contact with the FBI, which had documented approximately 160 photographs sent or received by Matthews over the Internet. Matthews maintained that only by trading in child pornography could he infiltrate a world to which he otherwise would have no access.

    In December 1996, the FBI executed a search warrant on Matthews’s home. The search team found work papers regarding various topics, but no notes or other research documents regarding child pornography. Matthews acknowledged that he did not save his online conversations and that he did not take many notes. He claimed that he provided the few notes he did keep to his previous counsel; these notes were not produced for trial. Matthews was indicted on six counts of transmitting child pornography over the Internet in violation of 18 U.S.C. Sec. 2252(a)(1), and nine counts of receiving child pornography over the Internet in violation of 18 U.S.C. Sec. 2252(a)(2). This resulted in the plea agreement under the terms discussed above.

    On appeal, the court framed the issue as follows: "[D]oes the First Amendment permit a bona fide reporter to trade in child pornography to ‘create a work of journalism’?" Matthews, 209 F.3d at 342. The court of appeals answered this question in the negative. It noted that Matthews’s asserted defense must fail, as there exists no exception to 18 U.S.C. Sec. 2252 for transmission or receipt of child pornography with artistic, scientific, literary, journalistic, or other "legitimate" value.

    The main precedent for the court of appeals’ decision was a case in which the U.S. Supreme Court upheld a New York statute identical in relevant respects to 18 U.S.C. Sec. 2252 on the basis that child pornography, like obscene adult pornography, was without First Amendment protection. New York v. Ferber, 458 U.S. 747 (1982). The Supreme Court had concluded that a legislature was entitled to a good deal of leeway when enacting restrictions on child pornography, because child pornography generates a set of harms distinct from those related to adult pornography -- harms related to the sexual abuse of children. Id. at 756. Because Congress had not created any sort of exemption to allow the transmission or receipt of child pornography even for "legitimate" purposes, Matthews’s evidence that his actions were undertaken for a journalistic purpose were properly excluded from the record at the district court level. Matthews, 209 F.3d at 344.

    Because the court of appeals held that Matthews was not entitled to raise a First Amendment defense, it withheld ruling on what the exact parameters of any such defense might be. However, the court did leave an opening for the defense to be raised in the future:

We do note, however that the Ferber Court’s observation that impermissible applications of a child pornography statute would be rare, its directive to view pornographic depictions of children in isolation, its examples of depictions that might be impermissibly banned, and its suggested alternatives to the use of children in socially valuable works clearly indicate that one could invoke a First Amendment defense only if the depictions did not threaten the enormous harms to children the Court identified. Matthews, 209 F.3d at 347.

 

    Matthews had acknowledged at oral argument that he could not obtain any benefit from such a limited First Amendment defense.

    Matthews also argued that 18 U.S.C. Sec. 2252 violated the Due Process Clause because it contained no criminal intent requirement. The district court had also rejected this defense. Matthews tried to analogize his case to a Supreme Court decision requiring that some element of scienter is required for child pornography prosecutions. United States v. X-Citement Video, 513 U.S. 372 (1994). However, the court of appeals noted that X-Citement Video only required that the defendant knew he was transporting or receiving depictions of a sexually explicit nature and the individuals depicted were minors, not that he knew he was committing a crime. Matthews, 209 F.3d at 350.

    The court of appeals noted that it had dealt with a similar argument in a case involving the mayor of a small town who had been charged with possession of crack cocaine. The mayor did not deny selling drugs, but claimed that he had done so as part of his own undercover investigation into employee theft and drug use at a local convenience store. United States v. Fuller, 162 F.3d 256 (4th Cir. 1998), cert. denied, 120 S. Ct. 75 (1999). The court of appeals rejected this defense, reasoning:

The mens rea required by the statute is that the defendant "knowingly or intentionally" engage in the prohibited activities. To act "knowingly" is to act with "knowledge of the facts that constitute the offense" but not necessarily that the facts amount to illegal conduct, unless the statute indicates otherwise. Matthews, 209 F.3d at 352 (citing Fuller, 162 F.3d at 260).

 

    The court of appeals also held that the district court did not err in its factual findings that formed the basis for its refusal to grant a downward departure in the applicable sentencing range set forth in the United States Sentencing Guidelines. Id. The district court had found that Matthews had not demonstrated by a preponderance of the evidence that he trafficked in child pornography solely for a journalistic purpose.

    The court of appeals affirmed the sentence imposed upon Matthews. On Oct. 3, 2000, the Supreme Court declined to grant certiorari to Matthews, meaning he will have to serve his jail sentence.