Bernie Ward, a San Francisco-based liberal talk show host, was indicted late last week on federal child pornography charges. His is the second such indictment brought against a media figure who then claimed he had the porn merely to do research and reporting. Meanwhile, a third journalist, a former New York Times reporter who engaged in similar behavior, has not been indicted. The inconsistency suggests that the government chooses whom to go after and whom to leave alone. And it makes clear that the media needs a First Amendment exemption or license allowing reporters to examine child pornography legally.
Before his indictment on December 6, Ward – who is 56 and married with four children—had two programs on San Francisco’s KGO-AM radio. One was a nightly political and news talk show; the other aired weekly and dealt with religion. In the 1980s Ward was an award-winning general assignment and political reporter at KGO. He is also known for conducting major fundraising drives for Bay Area non-profits that help the homeless and others in need. From 1982 to 1985 he worked for then-Rep. Barbara Boxer as her chief legislative assistant. On KGO and on national talk shows, he strenuously opposed the war in Iraq and other Bush Adminstration policies. KGO billed him as “The Lion of the Left”. Following his indictment, he has been put on leave from the station.
Ward’s lawyer, Doron Weinberg, told the San Francisco Chronicle that Ward accessed and distributed only a small amount of child pornography three years ago, for research he was doing to write a book about hypocrisy in America. The Chronicle quoted sources familiar with the case saying that “authorities noted that Ward was monitored as he went on a chat room and sent and received images.”
Indictment papers released on Friday support Ward’s claim that the government was involved in the case as early as 2004 but waited years to indict.
Ward’s case is strikingly similar to that of Larry Mathews, a media figure who faced child porn charges in the late 1990s. Mathews was a Washington DC-area radio reporter in his late 50s. He had won press awards and was known for covering social issues, including the problem of internet child porn. When arrested, he said he had acquired illegal material because he was impersonating a pedophile in order to do another story.
The government countered that Mathews had no notes or story assignment from a media outlet. The ACLU, National Public Radio, and other press and First Amendment organizations spoke out for him and filed supporting legal briefs. But an appellate court later ruled that journalists have no right to acquire or distribute child pornography while doing research. Mathews was convicted and served several months in a halfway house.
If convicted, San Francisco’s Ward faces a maximum 15 years for each of three criminal counts.
“The government knows that Bernie was doing this for an investigation he was doing for a book,” the Chronicle quoted attorney Weinberg saying. “But the government believes he violated the letter of the law, and they have gone ahead and prosecuted him….The fact that these events happened three years ago – and they are just being prosecuted – shows the fact that nobody believes that he is a child predator.” The Examiner seemingly attempted to explain how Ward could have avoided prosecution by citing a federal law—which the paper mistakenly said “forgives” possession of three child pornography images if they are destroyed and promptly reported to authorities. In fact, that statute, which is part of U.S. Code 2252, allows only two images. And some legal scholars interpret 2252 as “forgiving” someone only if he or she came to possess child porn by accident rather than intentionally. A reporter deliberately researching child pornography would thus hardly qualify for “forgiveness” under 2252. In addition, the law is merely an “affirmative defense.” To exercise it, one would have to first be indicted. There is no case law indicating that any journalist has ever used 2252 to justify their work after being charged with possession or distribution of child porn.
However, the statute was cited in August 2006 by the New York Times. Kurt Eichenwald, then a Times reporter, said he accidentally accessed a few illegal images while doing month’s-long reporting on Internet child pornography. In a sidebar to one of Eichenwald’s articles, the Times said that a law – presumably 2252– excused the reporter’s encounter with the illegal material. But Eichenwald’s published work implied he had accessed far more than two images.
Further, Eichenwald in 2005 obtained and used administrative sign-on privileges to explore a commercial porn website containing images of a 14-year-old boy masturbating. Eichenwald went on to write a major Times story based on reporting he did about this site and the people who ran it.
Eichenwald took the young man who ran the site to federal authorities, where he turned state’s evidence against his business partners in exchange for prosecutorial immunity. As a result, four people were arrested and convicted. Eichenwald’s work also led to Congressional hearings – at which he testified – where witnesses made unsubstantiated claims about the prevalence of Internet child predators and pornography. Those hearings were a run-up to passage of the 2006 Adam Walsh Act. It requires states to put children and very low-level offenders, such as public urinators and people caught with small amounts of child porn, on sexual offender registries for years – a policy that has since been condemned by Human Rights Watch. Since 9/11, the government has used unsubstantiated claims about the extent of child pornography to defend sections of the Patriot Act which intrude on internet privacy.
Eichenwald claimed he became involved with child pornography to find out about the problem. In some instances, he did not tell Times editors what he was doing. Later expose of his activities provoked intense controversy in the media world, and currently he is not working as a journalist. However, he has not been criminally prosecuted.
[ DEBBIE NATHAN has covered the Eichenwald case extensively for CounterPunch. See:
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If KGO’s Ward is being truthful about why he was involved with child porn, the government is treating him differently than it has former Timesman Eichenwald. Is that because the feds don’t consider Ward such a good friend as they do Eichenwald? Does the DOJ deliberately go after certain types of media people and leave others alone? It’s too early to tell, since only three such individuals have been publicly implicated as involved with child porn. Meanwhile, the media has no way to cover the topic. To accurately describe the extent of the problem, to compare government claims with reality requires work that invites prosecution.
Journalists need some kind of system or First Amendment permit to allow them to do their reporting. Otherwise, the public will remain ignorant about what’s really going on with child pornography. And media people trying to find out will risk indictment, or worse.
DEBBIE NATHAN is a New York City-based journalist who writes about sexual politics and immigration. She can be reached at naess2@gmail.com