Writer set back in child porn case First Amendment can't be used as defense, judge rules

July 03, 1998|By Michael James | Michael James,SUN STAFF

Free-lance journalist Lawrence Matthews says he was doing research for a story. The U.S. government says he was blatantly trafficking child pornography on the Internet.

The ensuing battle between Matthews and prosecutors is playing out in a Maryland federal court, where the reporter is scheduled to stand trial next week in a "cyberporn" case that some argue has long-term implications for free speech.

Matthews, a Silver Spring resident with 31 years of journalism experience, is charged in a 15-count federal indictment with using his home computer to receive and transmit sexually explicit photographs of underage girls. The purpose, he says, was to gather information for a free-lance magazine article he planned to write.

The FBI and the U.S. attorney's office, which collected graphic images of children as young as 8 that Matthews sent via America Online, don't believe he had journalistic intentions. Even if he did, they argue, the First Amendment defense is moot because journalists have no right to break the law while pursuing a story.

Their line of reasoning got a nod of approval this week from Alexander Williams Jr., the federal judge in U.S. District Court in Greenbelt who is hearing the case. Williams ruled Matthews cannot rely on the First Amendment at the trial, dealing a harsh blow to the journalist's defense.

"The First Amendment's protection of the press is far from unlimited," the judge wrote in a 15-page opinion. "It is well-settled that the First Amendment does not grant the press automatic relief from laws of general application. A press pass is not a license to break the law."

Matthews, who is temporarily employed as a producer with National Public Radio, and his attorneys didn't respond to a request to be interviewed. Attorneys who have filed friend of the court briefs on Matthews' behalf said yesterday that the ruling will have a chilling effect on journalists who seek to report sensitive stories.

In court briefs, Matthews has maintained that the story he planned to write would have delved not only into the cyberworld of child smut but also the effectiveness of law enforcement agents' efforts to curb it.

"We think it's important that the court protect journalists' right to investigate stories, particularly stories that investigate how our government is operating," said Arthur B. Spitzer, legal director for the Capital Area of the American Civil Liberties Union. "If the government can prevent the press from doing that by prosecuting them, that in our view raises real problems."

Federal prosecutors refused to discuss the issue this week, citing their rule prohibiting discussion of pending cases. In the past, however, they have accused the media of turning what they consider to be a garden-variety Internet pornography case into an academic argument about freedom of the press.

In legal filings, prosecutors document several pieces of lewd evidence collected in the case, which they say show particularly disturbing photos of children involved in sex acts. Matthews sent them in 1996 using his Macintosh computer, according to an affidavit filed by a deputy U.S. Marshal.

"The defendant was not acting in a journalistic capacity when he received and transmitted the various pornographic pictures," Assistant U.S. Attorney Jan P. Miller wrote, adding that Matthews initially told investigating agents that he wasn't working on a child pornography story.

Matthews says in court filings that he did identify himself as a reporter working on a story when his home was raided Dec. 11, 1996.

In a hearing in U.S. District Court in Greenbelt, he said he told an FBI agent that he was researching "a story about child pornography and what was going on online and the availability of this, and what law enforcement was doing."

As for the raid, he said, "I think in the beginning I felt this was a matter that was a mistake, that I hadn't done anything wrong and had nothing to hide. I think as the questioning went on it became obvious it was something more than that."

Other factors make the case even less black-and-white. Matthews' reputation in the journalism community is sound, he has no criminal record, and even Williams in his opinion this week described him as "a seasoned reporter" who has done bona fide reporting on the child pornography issue.

In 1995, Matthews did an investigative three-part story for WTOP radio in Washington on the availability of child pornography on the Internet. During his investigation, Matthews volunteered information to the FBI about a person online who claimed to be offering children for prostitution, federal documents said.

And when federal agents raided his home, they found no obvious evidence of child pornography. The material they did find was taken from Matthews' computer after exhaustive efforts by FBI computer specialists trained in locating deleted files from hard drives, court papers said.

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