A free-lance reporter pleaded guilty to child pornography charges despite his defense that he was engaged in the process of newsgathering for a story about child pornography on the Internet. The pleas came one day before Larry Matthews, an award-winning reporter who had previously been employed by Washington, D.C., radio station WTOP and National Public Radio, was to be tried in a U.S. district court on 15 charges of receiving and distributing child pornography. United States v. Matthews, 26 Med. L. Rptr. 2163 (D. Md. 1998).

   Matthews has been a journalist for over 30 years. In 1995, while working for WTOP, he did a three-part series on the availability of child pornography on the Internet. After leaving WTOP to become a free-lance journalist, Matthews continued researching issues related to child pornography on the Internet. Specifically, he was concerned with the role of law enforcement against child pornography.

   On Dec. 11, 1996, the FBI executed a search warrant of Matthews's home and seized certain materials. This is despite the fact that Matthews had previously notified the FBI of his research. He was charged under 18 U.S.C. §2252 with 11 counts of receiving and four counts of transporting, "via computer, visual depictions of minors, engaged in sexually explicit conduct, the production of which involved the use of minors engaged in sexually explicit conduct." Matthews, 26 Med. L. Rptr. at 2164.

   Matthews moved to dismiss on the grounds that his activities were protected by the First Amendment. He claimed he had entered various "chat rooms" or "discussion groups" on the Internet to discern the availability of child pornography, and to report on the fears of those trafficking in such items that they may be apprehended by law enforcement officers. He claimed that simply monitoring and participating in discussions on the subject was not enough; sending and receiving child pornography was necessary to keep up appearances and to build the trust of those persons from whom he was receiving vital information.

   Prior to reaching the First Amendment argument, the court denied a motion to dismiss two of the counts of distributing child pornography. Matthews argued that the four counts of distributing child pornography arose from only two acts < i.e., two photos were sent on two different occasions. The court disagreed. It cited United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990), cert. denied, 498 U.S. 1038 (1991), where the Fifth Circuit held that the act of transporting images is the focus of the relevant statute. In Gallardo a defendant who mailed three separate envelopes containing the same images of child pornography was held to have committed three separate violations of the statute.

No First Amendment Defense

   Moving to the main focus of the case < whether the First Amendment provided a defense to prosecution < the court ruled that Matthews had knowingly committed these crimes and that his status as a reporter offered him no protection under 18 U.S.C. 2252. The court's analysis began with New York v. Ferber, 458 U.S. 747 (1982), in which the U.S. Supreme Court upheld the constitutionality of a New York statute banning distribution of non-obscene child pornography because "the Court found that the state's interest in safeguarding minors not only is a sufficiently compelling state interest, but that it is of 'surpassing importance.'" Matthews, 26 Med. L. Rptr. at 2166 (citing Ferber, 458 U.S. 756-57).

   The court reiterated that, despite First Amendment protection for newsgathering, the press is not immune from laws of general application. It cited Branzburg v. Hayes, 408 U.S. 665 (1972), for the proposition that the Supreme Court has recognized that the First Amendment protects newsgathering activities. However, the court contrasted Branzburg with other cases holding "the right to speak and publish does not carry with it the unrestrained right to gather information." Matthews, 26 Med. L. Rptr. at 2167 (citing Zemel v. Rusk, 381 U.S. 1 (1965)).

   The court rejected Matthews's argument that the balance between the free press and the respect for laws of general applicability must be struck in favor of the press because of his overriding need to access child pornography on the Internet. Matthews argued that his actions were warranted because he was investigating the highly important issue of the role of law enforcement officials on the Internet. The court balked at this argument, stating that "if law enforcement officials are doing something improper in their investigations, the Court does not understand how Defendant would uncover their malfeasance by receiving and disseminating the material himself." Matthews, 26 Med. L. Rptr. at 2168.

Public's Right to Know?

   The court also rejected Matthews's argument that his activities were justified by the public's right to know whether the government is doing enough to curtail the availability of child pornography on the Internet. The court surmised that there would be other ways to engage in such research:

While the Court is hesitant to give news gathering tips, the Court agrees with the Government that other, legal avenues of investigations are available. For example, a reporter could study the number of prosecutions brought by the government and examine the public records in those cases. A reporter could develop sources, including victims of child pornography and people already convicted of violations. Finally, a reporter could examine reports to public interest groups that track incidents of child pornography distribution. Id.

   After the court denied Matthews's motion to dismiss, his attorneys entered two conditional pleas of guilty to receiving and distributing child pornography. The pleas were entered to facilitate an appeal to the U.S. Court of Appeals for the Fourth Circuit. That appeal has already been filed.