Jim DeRogatis Credit: Marty Perez

The Fifth Amendment? What possible crime could Jim DeRogatis have been concealing when he repeatedly—15 times in all—answered questions put to him in court last week by invoking his constitutional protection against self-incrimination?

Subpoenaed by R. Kelly’s attorneys, DeRogatis came to court with a script and stuck to it. It was his way of telling the court he was there under duress and considered the Fifth Amendment the least of the reasons why he felt entitled not to cooperate. To each question he replied, “I respectfully decline to answer the question on the advice of counsel, on the grounds that to do so would contravene the reporter’s privilege, the special witness doctrine, my rights under the Illinois Constitution, and the First and Fifth amendments of the United States Constitution.”

The reporter’s privilege law in Illinois forbids a court to “compel any person to disclose the source of any information obtained by a reporter” unless the court concludes that this information is essential to the public interest and there is no other way of getting it. The special witness doctrine says much the same thing but shields journalists against questioning of a wider scope. The First Amendment says, of course, that freedom of the press shall not be abridged.

But Judge Vincent Gaughan had already ruled that DeRogatis didn’t qualify for these other protections, and the state appellate court had refused to intervene. So that left only the Fifth to protect DeRogatis from a contempt of court citation if he refused to answer the innocuous-sounding questions Kelly’s attorneys wanted to put to him. The Fifth, which guarantees that no person can be “compelled in any criminal case to be a witness against himself,” is an amendment appreciated far more by attorneys than by average citizens, who associate it with professional criminals dancing away from their crimes. And when it comes to the Fifth, most journalists are average citizens.

By February 2002 DeRogatis had already been writing about R. Kelly’s checkered private life for more than a year. That’s when he received a tape that allegedly showed the R & B star having sex with, and urinating on, a girl who appeared to be about 13 years old. DeRogatis turned the tape over to the police a few hours later, and it became the basis of Kelly’s eventual prosecution on child pornography charges. Courtroom spectators sympathetic to DeRogatis for reluctantly taking the Fifth nevertheless might have wondered: a witness against himself to what? What had he done that might be criminal?

Child pornography, as Sun-Times attorney Damon Dunn explained it in court, is “radio­active.” Ten years ago an editor for National Public Radio, Larry Matthews, told federal prosecutors he was doing his job when they charged him in Maryland with receiving and transmitting “visual depictions of minors” engaged in “sexually explicit conduct.” A few years earlier he’d produced a three-part series on Internet child pornography for a radio station in Washington, D.C. He said he’d decided to keep working the story.

“A press pass is not a license to break the law,” said the trial judge, who forbade him from mounting a First Amendment defense. As that was the only defense he’d had, Matthews then pleaded guilty in order to expedite an appeal. But the appellate court backed up the trial judge, and Matthews was sentenced to 18 months in prison.

Four years ago the New York Law Journal carried an article headlined, “Child Porn Poses Risks to Companies That Discover It in the Workplace.” It warned that federal and state laws against child pornography had “put the fate of those who innocently possess child porn—such as counsel and their forensic experts—largely at the mercy of prosecutorial discretion … . The law generally treats child porn like heroin: mere knowing possession of it is a crime.” A couple of cautionary tales followed.

In one, a Virginia man who told the FBI and U.S. Customs Service that he wanted to turn over child porn he’d been receiving was arrested and prosecuted for possession. Years later his conviction was reversed on a technicality—the government hadn’t shown that the porn contained images of actual children.

In another, a couple in Maryland whose home surveillance camera caught a neigh­bor boy performing sex acts with their dog turned the tape over to the police but only after telling the story to friends. They were charged with possession and sentenced to probation.

The article went on to observe that an “inno­cent possession defense” had been recog­nized by trial judges in some cases involving illegal possession of narcotics or guns, though it had apparently not been applied to a child pornography case. This was possession that one court said “might result temporarily and incidentally” from a lawful act. DeRogatis (with legal writer Abdon Pallasch) reported in December 2000 on the front page of the Sun-Times that, according to court records and inter­views, Kelly had exploited his status “as a pop superstar to meet numerous girls as young as 15 and have sex with them.” It might be hard to argue that a tape came to DeRogatis “incidentally” in 2002 when its subject was something he was already reporting on.

And continues to report on. Sun-Times attorney Damon Dunn stressed this point on June 4 when he argued that DeRogatis’s First and Fifth amendment privileges were “inextricably intertwined.” The questions from defense attorney Marc Martin that DeRogatis refused to answer were elemen­tary—such as, did he watch the tape? But Dunn told Gaughan, “Admissions that he watched that tape would then taint his interviews of sources from that point on to the current day.” In other words, DeRogatis’s professional involvement with the tape could be construed as ongoing, and the five-year federal statute of limitations on child porn crimes—which Martin argued protected DeRogatis from self-incrimination—could easily be overcome by a “zealous prosecutor.”

Suppose DeRogatis kept a copy of the tape, Dunn hypothesized—he wasn’t saying DeRogatis did. And what if the FBI one day took an interest in it because it looked to them like child pornography? What should DeRogatis do? Hold on to his tape—a violation of federal law? Destroy it? “The federal law would consider that obstruction of evidence,” Dunn said. He alluded to a 2006 case from New Haven, Connecticut, in which a church discovered child porn on its music director’s laptop, which its attorney then destroyed. Though the attorney, Philip Russell, said he was unaware that an FBI investigation of the music director was already under way, he wound up pleading guilty to concealing a felony and was sentenced to six months of home confinement.

And even if DeRogatis didn’t keep a copy of the tape, Dunn went on, “now he knows what is on the tape and now he knows when he talks to sources what they are talking about on the tape, and while I doubt very much that it would—that would create—well, I don’t know. I can’t speak to it … 

“While we may all feel that back at my law firm that Mr. DeRogatis is an innocent man, … as a lawyer, you can’t take the risk because you don’t know what they would be thinking over in the United States district attorney’s office.”

In other circumstances, so tentative an argument about legal risk might not persuade a judge. But here federal child porn statutes created the danger and Gaughan took them seriously. “Based on the Fifth Amendment privilege,” he ruled, “I find that [DeRogatis] does not have to testify.”

My friend Debbie Nathan, an investigative reporter in New York who used to write for the Reader, understands the child porno­graphy minefield like few other journalists. Two years ago she contributed an article to Salon titled “Why I Need to See Child Porn.”

She wrote, “It infuriates me that the govern­ment prohibits reporters and other legitimate investigators from doing front-line research into child pornography … . 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. And to terrorize people like me.”

“Technically,” she went on, “according to federal statutes, just visiting a kiddie-porn site makes you a lawbreaker, because regardless of why you went there, the images end up in your hard drive. You ‘possess’ child porn, which is a serious crime. You can notify the authorities. You can clean up your cookies and your cache. Still, you broke the law. The feds might excuse you, or they could arrest you. It’s entirely up to them.”

In short, she continued, “I’m worried that the government has declared an entire field of law enforcement and public policy off-limits from empirical critique by academia and the fourth estate.”

For us to say Jim DeRogatis was in no real danger of prosecution for possession of child pornography is to say the local U.S. attorney is a sensible guy with bigger fish to fry. And Judge Gaughan actually said that. He told Dunn and DeRogatis, “We have probably the best United States prosecutor in the country, Mr. Patrick Fitzgerald, and he is not going after your client. As zealous as he is about prosecuting other things, he will not go after your client.”

But Gaughan added, “That is an aside.”

So it was. It’s not the business of a court­room to adjudicate on the basis of common sense, to rule that because the current U.S. attorney for northern Illinois is a serious and decent man DeRogatis ran no risk of incrim­inating himself. On the basis of the laws we’ve got and the ways they’ve been enforced around the country, DeRogatis did.