On December 19, 2005, the New York Times carried two compelling pieces on child pornography by reporter Kurt Eichenwald. One was the story of an 18-year-old boy who'd become a kind of star on porn video sites. The other was an essay explaining how Eichenwald got in contact with the boy and eventually persuaded him to leave the business.
On August 20, Eichenwald wrote again. This Times story was about Web sites that feature prepubescent children scantily attired in an attempt to get around child porn laws. Five days later freelance writer Debbie Nathan responded on Salon. "The kind of looking [Eichenwald] did can get a journalist arrested," she wrote, and she was "irked" that during an exchange of e-mails with him he hadn't taken that danger seriously. "When I stumbled on similar material earlier this year doing my own research," she explained, "I was terrified I'd be busted simply for doing my job as a member of the media." Despite laws forbidding the public to even visit child-porn sites, journalists must be able to, Nathan argued, to test "government claims about how prevalent child porn really is. . . . Otherwise the government can use our fear and loathing of kiddie porn to make false political claims. And to terrorize people like me." If there was no way Nathan could have legally visited child-porn sites -- well, of course that meant there was no legal way Eichenwald could have done so either.
Nathan's story had barely been posted when Salon repudiated it and took it down. "In fact," the site explained, "federal law does offer some legal protection for journalists and other researchers. An 'affirmative defense' may exist that would protect such work under certain circumstances, and the opinion asserted by Nathan that her work, and the work of other journalists, would constitute a violation of the law was inaccurate."
Readers and bloggers were outraged. "Salon's editors only allege that there may be an affirmative defense, not that there is one," one poster argued. "So Nathan's article can be disclaimed to express her concern that it could be a violation and it still stands. This is not a legitimate correction. It is overt censorship."
Here's the law. Decide for yourself.
Salon didn't yield. Instead, it ran a second, much more elaborate correction, in a format that didn't allow for responses. This time it didn't just say Nathan was wrong about the law, it explained how nimbly and responsibly Eichenwald and the Times had stayed within it. "The Times reported to federal authorities all of the potentially illegal content it inadvertently viewed and made it clear that the paper did not copy or retain any illegal images. Salon has no reason to doubt Eichenwald's and the Times' account of these actions." For good measure, Salon repeated itself: "The assertion that there was no law regarding inadvertent discovery with which the Times could comply was incorrect. Any implication that the conduct of the New York Times or Mr. Eichenwald was illegal was also incorrect."
When journalists throw up their hands like that and say they were wrong, wrong, wrong, it means one thing -- lawyers told them to. Sure enough, the January/February 2007 issue of Extra!, a journal published by Fairness and Accuracy in Reporting, says Eichenwald read Nathan's piece and threatened to sue both Nathan and Salon for libel. According to Extra! a passage in Nathan's story claiming Eichenwald had "looked at a lot of kiddie porn" sent shivers down his spine. "There could be, by necessity, a referral to Child Services and the removal of children from my home," Extra! had him explaining. Eichenwald's admission would seem to reinforce Nathan's argument about the law, not contradict it--but whatever. The Salon piece had disappeared and it wasn't coming back, and there was nothing Nathan could do about it except fire off e-mail to people who might be interested in what she'd been through. I'm a friend from her days long ago at the Reader, so I was one of them.
Jump to the present: On March 6 the New York Times ran an unusually long correction of the original story and essay Eichenwald wrote about that 18-year-old boy back in 2005. It was actually more of a confession than a correction -- the Times admitted that Eichenwald (who's no longer at the Times) had at one point sent the boy a $2,000 check and should have said so: "Times policy forbids paying the subjects of articles for information or interviews."
News of the check came out as a trial got under way in Ann Arbor, Michigan, of a man charged with criminal sexual misconduct involving the youth. On March 7 Eichenwald took the stand, and a tart account of what he had to say promptly showed up on the New York magazine Web site. "It could have been renamed '$2,000 Check v. Journalism 101' -- and Eichenwald's testimony showed he knows he broke the rules," New York reported. "Fearing [the youth] was under 18, Eichenwald offered to send $2,000 but only if [the youth] provided a full name and a mailing address," New York went on. "He got both and sent the check but opted not to turn the information over to the police. Instead, [Eichenwald] said today, he made a date to meet [the youth] at Los Angeles International Airport." That's where, according to Eichenwald's testimony, he told the youth he was a straight reporter and explained that "he paid that money to save your soul."
When the youth said he wanted out of the porn business Eichenwald pitched a story to his editor, and soon the "incredible story" was told. "But," New York admonished, "one detail got lost: the check. And now, in the Michigan courtroom, Eichenwald said he knew the payment was 'a little bizarre,' and that in issuing it, he'd 'gone off the deep end.'"
The New York piece was signed by its reporter, Debbie Nathan.
UPDATE: The saga continues. Eichenwald responded to Nathan's New York article with a long, angry letter to Romenesko that attacks the press in general for not telling his story accurately and Nathan in particular, describing her as someone "who has been nursing a deep and public anger against me following a ugly confrontation in the fall." Eichenwald announced, "I have instructed my attorney to file a $10 million libel suit against her immediately, involving both her original and more recent libels." According to gawker.com, the suit's going to be filed in Dallas, in either state or federal court. Eichenwald lives down there.
UPDATE: As of Wednesday, March 14, there was still no sign of a suit. By now some long, analytic responses to Eichenwald's letter had been posted at Romenesko.