Testing the System   

Should journalists who break the law while gathering news be prosecuted?

Anyone who has traveled by air since September 11, 2001, knows that the security screening process is more cumbersome and intrusive than ever before. It's inconvenient. But is it effective?

Two news organizations decided to find out. Shortly before the September 11 anniversary, reporters for New York's Daily News smuggled prohibited items, including knives, razors and pepper spray, through airport security 14 times at 11 airports. "CBS Evening News" staffers succeeded in sending lead-lined film bags through the X-ray machines without causing the inspectors to raise an eyebrow.

When the stories broke, the government officials responsible were livid. The Associated Press reported that a spokesman for the Transportation Department accused the media of exploiting a story to sell papers and boost ratings, and of aiding and abetting terrorists when they exposed the security gaps. The Air Transport Association called for the journalists to be prosecuted for violating the federal statutes that make it a crime to carry a weapon onto a plane or to circumvent security screening.

CBS insisted it smuggled no contraband and broke no laws. Ed Kosner, editor of the Daily News, defended his paper's actions. Yes, his reporters technically broke the law, he said, but with only the best motive--to test the system. He equated their behavior with civil disobedience and claimed they were willing to accept the consequences.

As of this writing, no charges have been filed. But could they be? Or would the First Amendment protect the journalists who claim they were just trying to do their jobs?

In 1972, in his opinion in Branzburg vs. Hayes, Justice Byron White wrote that "without some protection for seeking out the news, freedom of the press could be eviscerated." But the high court has never said that laws that apply to everyone else shouldn't apply to journalists, too.

For example, in 2000, author James Sanders was convicted of conspiring to steal seat fabric from the wreckage of TWA Flight 800 as part of his investigation into the cause of the explosion. His claim that the prosecution was selective and vindictive, designed to punish him for challenging the official explanation for the crash, didn't fly with the 2nd U.S. Circuit Court of Appeals.

A few weeks earlier, freelance reporter Larry Matthews found out that the First Amendment was no defense when he was charged with trafficking in child pornography while researching a story. The 4th U.S. Circuit Court of Appeals refused to allow Matthews to argue that he didn't intend to break any law, but was only gathering news. Under the statute, his motive was irrelevant. Once he conceded that he had intentionally received and transmitted child pornography, he was guilty.

It is a federal offense to "knowingly and willfully" enter an aircraft or airport area in violation of security requirements. The penalty for having weapons in a secure area is stiff--up to 10 years in prison, with or without a separate fine--if you intend to commit a felony, like hijacking. You can get up to a year simply for breaching security. If you actually carry a weapon onto an airplane--like the British journalist who smuggled a meat cleaver and a dagger onboard a flight out of London's Heathrow Airport--you could be imprisoned for 10 years to life.

So what should a prosecutor do in cases like this? Applaud the journalists for their valuable service in exposing a flaw in airport security, or throw the book at them?

After the bombing of Pan Am Flight 103 in 1988, French broadcasters attempted to take packages containing fake bombs through security at Kennedy Airport. Accused of conspiring to lie to airport personnel about the contents of the parcels, the journalists were arrested but later released after successfully arguing that they had intended to test the system, not to violate the law. In a separate incident, ABC reporters who entered a restricted area at Kennedy were charged with trespassing. These charges, too, were dismissed.

But those cases predated the Matthews and Sanders cases and happened long before 9/11. Would the outcome be the same today?

Most journalists probably assume that any prosecutor would think twice about going after reporters who expose weaknesses in airport security. They assume that the public interest would outweigh the technical violation of the law. They assume that the right to know, and the right of the press to find out whether our government is doing its job, would triumph.

That's probably what James Sanders and Larry Matthews assumed, too. Unfortunately, they were wrong.