December 10, 2007

If Kurt Eichenwald worked for an obscure lefty radio station

A cautionary tale. For anyone who still cares.

Does anyone still care?

Posted by Daniel Radosh


At the risk of re-igniting a debate that you'd prefer to smolder into extinction, can I ask (in good faith, I promise you) what the rationale is behind the suggestion that a reporter working on a story about these crimes "needs" to see images depicting child abuse? Isn't it enough that the accused's lawyers and the courts have seen them and a finding has been made that the material violates the articulated legal standard?

Journalists get information about murders by speaking to murderers; can't they similarly get information about child pornography by speaking to child pornographers?

Short version:

"The reporting I'm talking about
involves testing government claims about how prevalent child porn
really is, and what makes an image pornographic in the first place. To
get answers, investigators must look at illegal material - lots of it.
Those investigators must also be independent of the government.
Otherwise the government can use our fear and loathing of kiddie porn
to make false political claims."

Long version

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 rest of the text mitigates it a little, but that official excuse seems pretty damning all by itself.

Doesn't that excuse ring a little hollow? Aren't there are other ways to obtain this information - for example, by researching the number of charges on the docket in a given jurisdiction in a certain time period and reviewing the court transcripts to determine what is said about the images or material in question in each case?

I don't understand why the reporter needs to see the images with his or her own eyes - journalists are in the business of confirming the existence (and by inference, the prevalence)of things by obtaining confirmation about those things from primary and reliable sources. Aren't they?

Is that you, Judy Miller?

First, I should have said thanks for posting the explanation.

Second, I'm sorry, but I don't see the parallel between my question and Judith Miller's problems at the NYT - wasn't Miller's downfall related more to the fact that she didn't report on any of the information available that conflicted with that which she had been told by her Bush administration "sources"?

To return to the topic at hand, though, I still don't see how a journalist's understanding of the child pornography problem, or the government's response to it, is enhanced by actually committing the criminal act that is prohibited.

I'm not saying that the journo should just "ask somebody important" how bad the problem is (and blindly rely upon the response) - but the actual information required to make an informed judgement on this issue, is (it seems to me) available and can be confirmed in ways that do not involve the further exploitation of a child victim - if you're willing to simply do a little leg work.

How am I wrong?

Because you have to take the word of interested parties on everything from the nature of the images to their prevalence. I think the $20 billion debacle illustrates the problem with that. Did you read the entire article I linked? It makes a pretty good case that the information is NOT available.

For all those who trust the government in this area, speak with Kelly Hoose: http://amjur.wordpress.com/
Four year child porn prosecution for alsscans images the government knew were adults.

For those who believe this is an aberration, speak with this defendant: http://trewthe.wordpress.com/
Prosecuted for possessing material that is copyrighted in the Library of Congress, and being re-issued on DVD.

Meanwhile, Congressman Lampson's spokesperson defended the House approved Safe Act by claiming child porn was a 5 billion dollar business; with no documented support of the figure: http://www.news.com/8301-13578_3-9830648-38.html?tag=blgfd.featured

Junior: Also, viewing an image to report on it does not in itself exploit a child victim any more than that child has already been exploited in the first place. If we were talking about reporters needing to create child pornography in order to report on it, I don't think any of us would be disputing that that was a bad idea.

I did read the entire article, but I don't find it all that convincing, at least insofar as it relates to the case for a general "exemption" permitting journalists to possess child pornography.

Your post on the $20 billion thing was great and I commend you for continuing to ask the kinds of questions you are about this kind of reporting in general; reading your posts on this topic and others have encouraged me to read a lot of the things I see in the news media much more critically than I might othterwise have and to keep a special lookout for numbers such as these that have every appearance of having just been pulled out of someone's ass.

If anything, however, my difficulty with the "exemption" argument is illustrated by your work on that post. I don't see how a journo looking at child porn online would be in any better position to question figures such as these simply because they've looked at the pictures. The correct approach to take, it seems to me, is the one that you have: to question those making such statements as to the source of their information (or to illuminate the dubious pedigree of the information with a little research). Those who rely on sketchy information of dubious pedigree will be revealed in due course.

If a writer is interested in doing a story on the prevalence of this behaviour in society, as I said before it seems to me that the place to start is some sort of quantitative study about the number of charges in a particular jurisdiction. Granted, the number of people charged with offences likely represents only a subset of the total number of people engaged in the offending behaviour, but even this information would permit some conclusions to be drawn inferentially about how common (or uncommon) this behaviour is - how do the number of charges compare, for example, to the number of reported assaults, drug offences or burglaries? An incomplete picture, perhaps, but the journalist who goes online and trades child porn with the sickos who have this material won't be in any kind of superior position to make any kind of judgment or provide readers with any useful information about how many people are "out there" doing this type of thing.

You also raise the nature of the images as something that needs to be inquired into by the journalist; you suggest that there is something inherently suspect in having to rely on the parties involved to describe them accurately. But an interested reporter could quite easily get a very accurate notion about the kind of images for which people are being prosecuted by relying on the findings of the courts in which these charges are prosecuted; reporters rely on such findings all the time, don't they? Having been found guilty by a court, they call John Wayne Gacy a killer - but not before. They rely on a forensic pathologist's expressed conclusions about the cause of death in a homicide case - they don't do the autopsy themselves.

It's like saying you need to actually purchase crystal meth to make an informed comment about the extent of that problem in society.

In the specific circumstances that Ms. Nathan is discussing (allegations of selective, politically motivated prosecution or perhaps more accurately "failure to prosecute"), I concede that the reporter's task would be somewhat more challenging as a result of not being able to directly compare the material at issue in the cases that are prosecuted to the material in which charges do not result. It seems to me, though, that such issues are not unique to the case of child pornography; anytime there is an allegation that the law is being applied inequitably, there are going to be pieces of material that law enforcement investigators have access to that are not and will not be made part of the public record. The issue is the same - incomplete access to the evidentiary basis upon which such decisions are made by those in positions or responsibility - and the task of the reporter is to find out what actually happened by talking to the individuals involved, gathering the available information and assisting the reader in coming to whatever inferential conclusions may be appropriate.

Thanks for putting up with me, and let me reiterate that I'm not trying to be a contrarian shit disturber. Also, I don't have any background in journalism so I don't claim to be any kind of authority and I would like to know if I have any of my facts wrong or if I'm missing something really basic here.

@Francis - that depends on one's definition of "exploit"; there are some who would draw an analogy to the republication of a libel re-victimizing the subject of the libel, and who would say that similarly, each time the image depicting a child's sexual abuse is disseminated to another individual, the child is again victimized or exploited as a consequence of the further compromise of his or her privacy and dignity.

I'm just sayin'. Okay, I'm done blathering on for now - by the way, Mr. Radosh, sorry for the long comment above.

Compared to those charged with other crimes, a very high percentage of people accused of child porn possession plea bargain rather than go to trial. My sense is that many aren’t guilty but do this to survive, because to be publicly and noisily accused in most communities is horribly demonizing and can even be dangerous to one’s life. As a result, it’s hard to know the nature of the material they’re accused of possessing. Is it really illegal?

The government is having a hard time these days figuring out whether a purported child porn image (a) depicts someone under the age of 18, (b) depicts an actual child or is merely computer generated or (c) fits definitions for illegal content.

The first problem is because it’s almost impossible to tell if a teenager is 15, 16 or 18 (and 18 is legal). The second: virtual images are getting so sophisticated that the naked eye can’t distinguish them from real ones, and computer programs are also having a hard time. Finally, the content definition of child porn is very vague. According to current law, a child can be clothed, without being touched by anyone, and some prosecutors, judges and juries will deem the image porn. Yet another such group will decide it’s legal.

A few years ago, I did a story for The Nation: it was about how vague, subjective and shifting the definitions are for what constitutes child porn. I dealt with a particular case, many months after the defendant had been convicted. The judge at his bench trial said the pictures were child porn. So did the prosecutors. I didn’t trust them any more than I did the defendant and his lawyer. I couldn’t report and write the story unless I could see for myself. Back, then, I could still look at the material with my own eyes because it was in exhibits for an appeal in preparation. Nowadays, though, lawyers can’t show this material to the press.

This man’s case was in Georgia; I was in New York. In a perfect world, there’d have been journalists in his shlocky little town who would have attended the bench trial and looked carefully at the pictures. But I’ve run into reporters who refuse to look at such evidence even when they have the opportunity, because “I just don’t DO that kind of thing.” This is the real world outside the metropole. (And maybe inside, too.)

(It probably goes without saying that my impression of the pictures was they weren’t sexual or pornographic. I described them in the article. An appellate court also overruled the judge’s perceptions on most of them.)

If anyone wants info on how the feds can’t tell a real from a virtual image anymore, email and I’ll send material: naess2@gmail.com.

I think much of the argument here revolves on the assumption the criminal justice system will sort out all the government’s mistakes and lies, and journalists should just depend on that process. I have a more activist view. People keep analogizing, for instance, between child porn and drugs, asking why reporters should get a hold of contraband porn when they don’t do that with, say, heroin, but depend on the DAs and defense lawyers to send everything to the lab?

So here’s another example: In Dallas a few years ago, the local police planted plaster dust on a bunch of undocumented Mexicans and accused them of being coke dealers. The Mexicans kept insisting they were innocent, but got lousy indigent legal representation and were all convicted. Finally, civil libterarians got involved, and independent testing was done. Meanwhile, the Mexicans were rotting in prison.

What if The Dallas Morning News or The Texas Observer had jumped in before the civil liberties people and wanted to get the evidence tested? Would that be outside the pale? What if the civil liberties/ACLU forces had never gotten involved (which would have been quite likely in Texas)?

We are nowadays living in a pretty nasty, beleaguered world when it comes to justice and “Wars” – on terror, on drugs, on “child predators.” Maybe a call for journalistic license to do anything other than “embed” with US troops overseas, or hang out at the White House, is flawed. For the time being, though, I think it’s the best answer to the problem of civil society having no oversight into government rhetoric about what child porn is, how much is really around, whether or not it’s “funding terrorism,” etc. etc. ad infinitum unsupported claims.

It seems to me that Ms. Nathan's notion of the appropriate role for journalists in a properly functioning society is FAR more activist than most people would be comfortable with - it's not the function of reporters to "jump in", nor to get "evidence tested" in the case of criminal investigations/prosecutions and it's not up to reporters to resolve an accusation of criminal activity levied against a citizen (as she suggests it may be in the penultimate paragraph). Reporters can and should objectively and fairly describe the results of such prosecutions, and the excesses of over-zealous authorities or unjust laws ought to be exposed - but not repaired - by journalists. Governments are elected to discharge these responsibilities, and governments are accountable to the electorate when injustices occur; maverick journalists are accountable to no one except the marketplace and the need to sell newspapers (or page views, in the case of the Web).

Ms. Nathan's "sense" notwithstanding, I suspect the vast majority of charges in child porn cases relate to materials that obviously depict child sexual assault; I doubt very much that many of these cases relate to images in which it is difficult to tell the age of the child depicted, and the information necessary to test that hypothesis should be commonly and easily available from transcripts of the proceedings, whether they are cases in which a trial or a guilty plea has been entered.

As for the "particular case" cited by Ms. Nathan, the trial judge evidently made a mistake, but the mistake was overturned by an appeal court. How is this different than a gazillion other criminal cases that don't involve child porn?
Lastly, this insistence that the journo needs to see the materials for him/herself is based on the premise that relying on second-hand observations or conclusions is unsatisfactory as a system of accountability. If that is so, why would the reader logically be inclined to accept a journalist's judgment that certain materials are or are not child pornography? Shouldn't the reader insist on seeing the materials in question for him or herself?

Junior, don't presume to speak for most people about whether journalists should be activists. If it's not a reporter's place to find out that faulty evidence was used to convict someone, then whose place is it? Nobody else was doing it, apparently. The government may be responsible to the electorate when injustices occur, but we do in fact need reporters out there finding out where these injustices are happening.

Francis: Please don't misunderstand me. I didn't say that journalists shouldn't "find out" about faulty evidence being used. What I mean to say is that the journalist should not expect to insert him or herself as an intermediary in the criminal dispute between the government and the citizen by "testing" (i.e. taking control of the evidence and analyzing it).

It seemed to me that this was exactly what Ms. Nathan was suggesting. To be fair, upon a third review of Ms. Nathan's post about the undocumented Mexicans and plaster dust, I may have been slightly mistaken about that. I think she stops (just) short of saying that the journalists should have taken the evidence and caused it to be processed or tested.

I fully agree that injustices need to be uncovered and documented by journalists; what I am questioning is whether the line between "inspection" and "intervention" is crossed when the journalist becomes activist in the way advocated by Ms. Nathan.

Advocacy journalism has a long and proud history. But I think you can fall short of that and still agree with Nathan's demands. Look back on her work on Satanic ritual abuse. The police, the juries, the judges, the public -- and the reporters who didn't manage to scratch the surface -- all agreed that kids were being molested and tortured by the thousands. Nathan dug further and got the truth. On that history alone, if she says she needs certain resources to do her job, I'm inclined to accept her judgment.

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