Writing in Salon on August 24, Debbie Nathan wanted to start a conversation about child pornography. She raised the question: How can journalists report on child pornography when it is a crime to even look at such images? Nathan argued that journalists should be protected from prosecution for possession of child pornography if that possession is for legitimate reporting purposes, including, for example, testing government claims about the prevalence of child pornography.
Instead, the conversation came to a screeching halt.
According to Nathan’s article, her inquiry was rooted in her own research this summer into child porn on the Internet. In the course of her reporting, she inadvertently stumbled onto a Web site that featured illegal images. She became consumed with a fear that she would be arrested and prosecuted, recalling the prosecution and incarceration in 2000 of freelance journalist Lawrence Matthews in Washington, D.C. on charges that he had received and transmitted pornographic images of children in the course of his research on the topic. She reached out to other journalists and researchers who had looked into the subject, and heard stories of people abandoning the enterprise because of the risk of prosecution.
Then on August 20, the New York Times published a piece by Kurt Eichenwald that exposed a group of new Web sites purporting to have legal images of children but which in fact feature images that are arguably pornographic. As Eichenwald explained, courts have decided that nudity is not required for images to be deemed child pornography. The Times article was accompanied by a disclaimer that stated: “Covering this story raised legal issues. United States law makes it a crime to purchase, download, or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained. The Times complied with the law, disclosing what it found to appropriate authorities.”
Eichenwald’s article, beyond just reporting on the trend, included lurid descriptions of the kinds of images found on these “child modeling” sites, though he says he relied on law enforcement and chat-room descriptions of the images rather than firsthand viewing. Nathan, however, assumed that Eichenwald had seen the images himself, and kicked off her article by provocatively saying that Eichenwald had spent time recently “look[ing] at a lot of kiddie porn.” Though she discussed Eichenwald’s tactics and opined on their legality, she ultimately was arguing that “the government prohibits reporters and other legitimate investigators from doing front-line research into child pornography,” because she believes such work requires journalists to view illegal images and risk being prosecuted.
Uncontested in Nathan’s argument is the notion that journalists have to actually see these images to test “government claims as to how prevalent child pornography really is and what makes an image pornographic.”
On the same day Nathan’s article was posted on Salon, the magazine pulled it and any letters it generated, and issued two corrections. The first correction emphasized that the law “does offer some legal protection for journalists and other researchers” and that an “affirmative defense may exist that would protect such work under certain circumstances, and the opinion asserted by Nathan that her work … would constitute a violation of the law was inaccurate.”
(An affirmative defense is one that does not deny the truth of the allegations against the defendant but gives some other reason why the defendant cannot be held liable.)
The second correction stressed that Eichenwald’s article was “not based on reviewing the content of the sites themselves” and reiterated the legal disclaimer that the Times originally ran with Eichenwald’s piece, asserting that journalists who come to possess these images inadvertently and who report them to the federal authorities are protected from prosecution.
With Salon disavowing Nathan’s entire article, the matter seemed settled. But the two questions at the heart of this episode are worth considering. First, the question Nathan addressed in her ill-fated article: Should journalists be protected from prosecution when they intentionally seek out child pornography for reporting purposes? And this one, which Eichenwald vigorously answers in the negative: Do journalists need to see these images — and therefore break the law — to adequately report on the subject?
The Times limited its interpretation of the federal statute’s provision for an affirmative defense to the case of inadvertent viewing. But a journalist like Nathan, who wants to see the images for her reporting, by definition would break the law and risk prosecution. (For a detailed review of the law as it pertains to journalists, see “Reporting on Child Pornography: A First Amendment Defense for Viewing Illegal Images?” by Clay Calvert, Kentucky Law Journal, Fall 2000/2001.)
We asked Calvert, a professor of communications and law and co-director of the Pennsylvania Center for the First Amendment at the Pennsylvania State University, to fill us in on the state of the law and any affirmative defenses as they apply to journalists:
“It is still very risky for journalists today to receive and transmit, during their investigation of a story or a report, images of child pornography. The Matthews case makes this clear in the U.S. Court of Appeals for the Fourth Circuit, and the general line of Supreme Court precedent is that journalists are not exempt from generally applicable laws that apply equally to all citizens. Clearly child pornography statutes are such laws of general applicability, so journalists take a risk today when investigating child pornography as they come across it on the Web, even with the exception spelled out in the federal statute pertaining to destruction of the images and reporting the matter to law enforcement officials. That defense under federal statute [18 U.S.C. 2252A (d)] only applies, by its terms, to the possession of ‘less than three images of child pornography.’ In other words, basically a journalist would be allowed under this defense to only possess two images, and that’s not a lot of content to look at for a full-blown investigative article.”
Nathan argues that to report on child pornography, journalists will be forced to take the government’s word about, for example, what these images are, where they are, who is involved, the extent of the problem, and how much revenue is generated. And by extension, so will the public. Her argument is that the government cannot be trusted.
Indeed, in May of this year, a piece in Legal Times tried to ascertain the source of a statistic, used by Attorney General Alberto Gonzales, on the prevalence of consumers of child porn on the Internet. As it turns out, both the media and the government were using a number — that at any given time 50,000 predators are on the Internet prowling for children — that seemed to come out of thin air. The media cited the government and the government cited the media as the source for the number.
But does contesting such a government claim require viewing the images? For Legal Times, at least, it did not.
In a heated exchange in the comments section of the blog on Open Democracy between August 25 and September 2, Eichenwald asserted that journalists don’t need to see the images to adequately report on the subject. Eichenwald quotes his own e-mail to Nathan on the blog, saying that her “apparent belief that we need to study child porn images has all the earmarks of a rubbernecking obsession on the grotesque.” He argued that journalists can trust descriptions of the images given by the courts and law enforcement officials. He reiterated these comments to CJR Daily in a phone interview.
This is tricky territory. We understand the importance of challenging government claims, especially when labels are used to stigmatize people and silence debate. For example, in the context of “terrorism,” we have more than anecdotal evidence that the government has falsely accused individuals and misled the public. But such investigations did not require journalists to engage in terrorism themselves, or to break the law in any other way, to find out the truth.
In the context of reporting on child pornography, it seems the only reason to see the images (and thereby break the law) is to determine whether or not they are actually pornographic, and we haven’t yet seen credible evidence that the press is being lied to and manipulated in this context. Some might see this as a chicken/egg problem. But the most expedient methods of accessing information are rejected by journalists all the time when those methods are illegal. Those who argue the need to see child porn to understand it too easily dismiss the fact that not only is viewing illegal, but that it also prolongs the exploitation of these children — because society has determined that merely seeing children in these poses victimizes the child. Similarly, we recognize the tension this creates with our role as the Fourth Estate.
Whether this situation necessitates a privilege analogous to what journalists seek in a federal shield law is perhaps a discussion worth having. Of course, such a discussion would require — as in the shield law debate — an examination of the question, Who is a journalist? And in a profession that requires no licensing, there is the very real danger that pedophiles could hide behind our privilege to indulge their criminality.
Alia Malek is an assistant editor at CJR.