By Ruben Castaneda
Washington Post Staff Writer
Monday, April 27, 1998; Page B01

At first, Larry Matthews sat at his Macintosh computer in the office of his Silver Spring home, signed onto America Online and tried to research a story on child smut on the Internet and efforts by the government to police it.

Matthews, who provided his account to The Washington Post through an attorney, said he found the private chat rooms -- the cyberspace equivalent of a telephone party line -- where people seemed to share an interest in lewd photos of children. He joined the computer conversation, typing in his name, identifying himself as a radio reporter who wanted to interview people about the prevalence of child porn over the Internet.

And then he watched as the chat room emptied, Matthews recalled.

Matthews said he decided to be more aggressive, to take on the persona of the people he was trying to reach, and even try to get people to send him some of the photos they were chatting about. Matthews said recently that he believed it was the only way he would be able to gather information for a freelance piece he was trying to research about the people trafficking in child porn.

The tactic worked. Through the Internet, people sent him photos of young girls in lewd poses. In chat rooms, Matthews, using his new persona, gained the trust of more child porn aficionados by sending, over the Internet, some of the photos he'd obtained, in exchange for yet more child smut.

Soon Matthews was ensnared by the investigative techniques he said he was trying to report about. He was charged with trafficking in child pornography.

Now, prosecutors have asked U.S. District Judge Alexander Williams Jr. to prohibit Matthews and his attorneys from using the First Amendment as the defense in Matthews's upcoming trial. They argue that the reason Matthews was sending and transmitting child pornography is irrelevant under the federal child pornography statute. They also say they don't believe Matthews's explanation.

Matthews's attorneys have asked Williams to dismiss the case, arguing that the question of motive is crucial and that Congress never intended to have the law applied so broadly that reporters and other researchers would be prosecuted.

Matthews's activities on the Internet, which he does not dispute, have become the center of one of the first major battles over the First Amendment and the legal boundaries of reporting through the Internet.

"The defendant is seeking what amounts to absolute immunity to violate valid criminal statutes when he decides to do so in the name of gathering news," the prosecution said in its motion to block the First Amendment defense.

Several First Amendment experts said they were unaware of any other cases in which a reporter has been prosecuted for obtaining or sending outlawed materials from the Internet and said they are alarmed that prosecutors are seeking to prevent Matthews from presenting a defense based on the First Amendment.

"I think this is an area of law that has to be watched very carefully. It's always in the name of some horrendous evil, like child pornography, that important rights tend to get stripped away," said Robert Corn-Revere, a Washington lawyer who represents journalistic agencies on First Amendment issues.

Matthews, a radio newsman with 31 years of experience who works as an editor at National Public Radio, was indicted last year on nine felony counts of possession of child pornography and six counts of distribution of child pornography. Matthews was employed at NPR at the time of his arrest, but the report he says he was researching was not commissioned by NPR.

He is scheduled to stand trial in U.S. District Court in Greenbelt in July and could face up to 15 years in prison for each count, though under federal sentencing guidelines he probably would get much less because he has no previous convictions, defense lawyers said.

"It's a frightening thing," Matthews said in an interview. "Can the government take any topic and say, the only thing you're allowed to report is what we tell you? What does it do to the First Amendment? Who will then keep watch on them?"

Matthews maintains that he was simply doing what any good reporter would, using his resourcefulness to ferret out information. His reporting, he contends, is protected by the First Amendment.

Maryland U.S. Attorney Lynne A. Battaglia disagrees. She says that Matthews is a child smut trafficker who happens to be a reporter. "We're not targeting any group of people, except individuals who traffic in child pornography," Battaglia said in an interview.

"The lesson that everyone should derive from this is that trafficking in child pornography is illegal," she said.

In court papers, Assistant U.S. Attorneys Jan Paul Miller and Deborah Johnston argue that Matthews's intent is irrelevant under the anti-child-pornography law, which prohibits obtaining or transmitting such images regardless of motive.

The prosecutors attacked Matthews's journalistic explanation by comparing child pornography to crack cocaine. A reporter investigating the crack trade "cannot go to an open air drug market and buy crack cocaine himself. Nor can he decide to sell crack cocaine in order to develop information to write his story."

On the other hand, several First Amendment experts said they were unaware of any other cases in which a reporter has been prosecuted for obtaining or sending outlawed materials from the Internet.

In the mid-1980s, a reporter in New Mexico was prosecuted for allegedly helping to transport undocumented immigrants into the United States. Her defense was that she was not transporting undocumented immigrants, but was working on an article about the sanctuary movement. The reporter was acquitted by a federal jury.

Matthews's attorneys have asked Williams to dismiss the case, arguing that the question of motive is crucial and that Congress never intended to have the law applied so broadly that reporters and other researchers would be prosecuted. And they have enlisted several civil rights and journalism groups to join their fight on First Amendment grounds.

"We don't take the position that journalists can violate any law. But when the activity involved is communication, the First Amendment interest involves greater weight," said Arthur B. Spitzer, legal director of the National Capital Area ACLU, which with the ACLU of Maryland has filed a friend-of-the-court brief in the case.

National Public Radio Inc., the American Federation of Television and Radio Artists and the Radio-Television News Directors Association have filed a joint brief urging Williams to allow a First Amendment defense.

"Matthews claims protection not for the content of the images at issue here but for the activity of news-gathering," the brief says. "The protection afforded to the latter under the First Amendment is as broad as the protection afforded to the former is narrow."

In interviews, the AFTRA president and an attorney for the radio and television news directors group emphasized that they are standing up for journalistic freedom, not the right to traffic in child smut.

"We think it's important for reporters to be able to pursue difficult and occasionally distasteful subjects. We feel this prosecution is very chilling," said Barbara Cochran, president of the Radio-Television News Directors Association.

"It's in cases involving distasteful material where rights are more easily lost," said Tom Powers, attorney for the Washington-Baltimore local of AFTRA. "In this case, it appears to me that the American people should be exposed to what role the government plays [in policing] pornography over the Internet."

Matthews has not denied he received and transmitted child porn over the Internet. But, in interviews, he said he was researching a freelance magazine article he hoped to write about child porn on the Internet and efforts to police it.

He said the planned article would have been an expansion and extension of a three-part radio report he did, broadcast in late 1995, on computer transmission of child pornography and the FBI's attempts to police it.

Through his attorney, Leslie McAdoo-Brobson, Matthews said he interviewed FBI agents for that story and told them he was cruising chat rooms himself to see what kind of child porn was on the Internet.

Matthews is charged with obtaining and transmitting sexually explicit photographs between July and December of 1996. The FBI knew in 1995 that Matthews was obtaining child porn through chat rooms and never told him to stop or warned him, McAdoo-Brobson said.

According to court records, Matthews went to the FBI in September 1996 to report that someone in one of the chat rooms was offering to prostitute her two young daughters for $1,200.

McAdoo-Brobson said that a man trafficking in child pornography would not have risked bringing attention to himself by contacting authorities to report possible child prostitution.

According to court papers filed by the defense, an FBI search of Matthews's Silver Spring home turned up no cache of child porn, only two images of nude minors in E-mail messages on two computers. Additional deleted images were retrieved from the hard drives of two computers, according to court records.

Prosecutors have argued that a reporter who wanted to write about child pornography could use court records, law enforcement officials and interviews with people convicted of child pornography charges, and could develop sources who have not come to the attention of police.

"What effect would this have on people conducting research for journalistic or academic purposes?" Millie Rivera-Sanchez, a telecommunications professor at the University of Florida, said of the move to strip Matthews of a First Amendment defense. "I think journalists would want the freedom to investigate, rather than relying strictly on what the police show them."

"I don't know of any competent and self-respecting reporter who would do a story like this by press release," Matthews said in an interview, "just [relying on] the FBI to tell you what they do."