WASHINGTON – The Supreme Court on Monday refused to consider whether the First Amendment can be used to protect a journalist who said he was using child pornography to research a story.
Lawrence Charles Matthews was an award-winning journalist with more than 25 years experience in Washington-area radio when he was indicted by a federal grand jury in 1997 on nine counts of receiving and six counts of transmitting child pornography between July and December 1996.
Matthews claimed that he was getting pornographic pictures over the Internet to research a story on sexual exploitation of children, but that he was not keeping them. He also argued that even though he was free-lancing at the time, he was a journalist working on a story and should have been protected under the First Amendment.
But the U.S. District Court for Maryland ruled in 1998 that Matthews could not use the First Amendment as a defense against child pornography charges. In April, the 4th U.S. Circuit Court of Appeals upheld the district court’s decision, ruling that there were no circumstances under which an individual could use child pornography. That prompted the appeal to the Supreme Court.
Matthews argued that the Supreme Court ruled in a 1982 case, New York vs. Ferber, that there could be circumstances where use of child pornography would be protected by the First Amendment. The high court asked in Ferber that courts be allowed to make those distinctions on a case-by-case basis, Matthews’ attorney said.
Matthews — who has received several awards as a journalist, including the George Foster Peabody Award — had also asked the Supreme Court to specify under which circumstances child pornography could be used by a professional without risk of prosecution.
“The only people in the world who can have child pornography without fear of arrest is law enforcement,” said Beth Farber, the assistant federal public defender for Matthews.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said any journalist should be able to use First Amendment as a defense. While her committee is not taking a position on Matthews’ guilt or innocence, Dalglish said she found the lower courts’ rulings in his case disturbing.
“What this means is that no journalist will ever be able to write about child pornography and research the subject,” said Dalglish, whose committee joined the suit as a friend of the court.
Without the protection of the First Amendment, Dalglish said, journalists will have to take the government’s word on the status of child pornography. She said that a journalist should not be restricted from conducting government oversight.
“I find that to be troubling,” said Dalglish.
Courts across the country are in conflict on the issue. Some have allowed individuals, such as educators and psychiatrists, to use the First Amendment as a defense. Farber said the 4th Circuit ruling leaves no room for individuals who need to use photographs containing child pornography, including those who work to develop software programs that block child access to selected web sites.
Since the enactment of child pornography laws, no defendant that has been allowed to use the First Amendment as a defense has won a trial, Farber said.
Justice Department officials could not be reached for comment on the case.