Papers Threatened with 'Porn' Purge

By Hernandez, Debra Gersh | Editor & Publisher, July 13, 1996 | Go to article overview

Papers Threatened with 'Porn' Purge


Hernandez, Debra Gersh, Editor & Publisher


Federal protections against newsroom searches could be weakened by proposals in a child pornography prevention bill currently making its way through the Senate.

While few would argue with Sen. Orrin G. Hatch (R-Utah) that "there is no place for such filth in our society," the means by which he and the bin's other sponsors are attempting to fight child pornography may be putting journalists' rights at risk.

The law at issue is the Privacy Protection Act of 1980, which prohibits law enforcement officials from searching and seizing materials from newsrooms. The only exemption is in the case of classified national security documents.

A proposal in S. 1237, the Child Pornography Prevention Act of 1996, would add pornographic material featuring children or that exploits children to the exemptions for newsroom searches.

The bill also would expand the definition of child pornography and would add images wholly created by computer to the statute.

A journalist trafficking in child pornography would not be exempt, but anyone collecting materials for research on such a story, or with potentially even less innocuous material, could fall under the bill's provision.

For example, if a father takes a photo of his young daughter with her shirt off and sends it out to be developed, the camera shop owner may report him to prosecutors and the father could be charged under the expanded definition of child pornography, which prohibits the "lascivious" depiction of the buttocks of a minor or breast of a minor female, explained attorney Daniel E. Katz.

Katz, legislative counsel for the American Civil Liberties Union, noted that if the father sent the photo to the New York Times for a story about his case, the Times newsroom, under the new rules, could be subjected to a search. The newspaper need not print the material, only be in possession of it.

During a hearing on the bin, Hatch said the amendment to the Privacy Protection Act was designed to allay concerns of law enforcement officials who worry that the statute's provision for civil action by persons wrongfully searched might be exercised in child exploitation cases.

Hatch noted that, "even the mere threat of such lawsuits may have the effect of discouraging some U.S. attorneys and local officials, particularly in smaller jurisdictions, from pursuing these cases.

"This legislation," he explained, "proposes an exemption for searches and seizures in child pornography cases - as well as in child exploitation and child selling cases - which would remove that threat while being consistent with well-established judicial precedent holding that child pornography enjoys no First Amendment protection."

Although it can be argued that the amendment is not intended to go after news organizations doing legitimate stories, as the bill is drafted, it makes no such distinctions, noted Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press.

"That is the number-one problem," she said. "It does make news organizations engaged in doing stories that fall under this new definition of child pornography - which is broader than it has been - fall under this risk."

In addition unlike subpoenas which allow time for a challenge, when a search warrant is issued, officers show up at the scene and, if they do not get cooperation, they have the authority to go through the premises to get the material listed on the warrant.

"That can put into danger many materials they have no legitimate interest in at all, but that they say they have to go through," Kirtley said, explaining that "searches are uniquely problematic."

Even though, "many news organizations would say they are not trafficking in child pornography, the problem is that the statute is so elastic it can cover a lot of material," she added.

Another point, Kirtley said, "is that it is not desirable to have the government amending the Privacy Protection Act whenever it dreams up a new status of material that it wants to create a new protection for. …

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