UCSB Professor Testifies for FSC at 2257 Trial

Jun 14, 2013 4:15 PM PST

PHILADELPHIA — Dr. Daniel Linz, a professor of communications at UC Santa Barbara, was the sole witness during the seventh and possible next-to-last day of the trial over the legality of the federal record-keeping law imposed on adult film producers.

Called to the stand by FSC attorney J. Michael Murray, Linz testified today on behalf of the plaintiffs and was asked to describe his academic background and the type of sex-related research he has conducted over the years.  

Linz noted that he was conducting research on sexually explicit material “as early as 1980” and that he has done much research on the “secondary effects doctrine,” which alleges that a brick-and-mortar adult business in an area (perhaps a strip club, perhaps an adult bookstore) contributes to social problems in that area.

Linz, over the years, has done a great deal of research demonstrating that the presence of a brick-and-mortar adult business in an area doesn’t necessarily contribute to an area’s decline.

During his direct examination of Linz, Murray set out to demonstrate that the vast majority of sexually explicit material involves consenting adults rather than minors. Murray asked Linz to discuss his porn-related research, including terms and phrases that were searched online, via Google, with the help of the Free Speech Coalition.

Linz testified that when the term MILF was searched, there were 454 million hits. But when the term “teen pron” (as opposed to (“teen porn”) was searched, there were around 28 million hits. When the term “child pron” was searched via Google, Linz testified, the number of hits was 3.09 million. And Linz said that approximately 2 million hits showed up in a search for “kid pron.”

Asked why Linz and the FSC searched “child pron” and “teen pron” rather than “child porn” and “teen porn,” Linz responded, “That term is used because Google is sensitive about the term child porn. Google has certain restraints in that regard.”

Other terms were searched as well. Linz testified that there were 78  million   hits for the phrase “porn, 18 years old” and 1.36 billion  for simply the word “porn.” For a search of the word “porno,” Linz testified, there were 808 million hits.

Murray asked Linz: of the “entire universe of sexually explicit” images available, roughly what percentage would you estimate are adult porn versus child pornography? Based on his many years of academic research, what would he estimate? Linz estimated that “99 percent of the material that is available is not child pornography.”

Linz said that based on his many years of research, “My opinion is that child pornography is a very insubstantial” part of the amount of sexually explicit images available.

Murray asked Linz: as someone who has spent more than 30 years studying and researching sexually explicit material and the adult entertainment industry, what are some of the changes you have observed along the way when it comes to the dissemination of sexually explicit images?

Linz replied that there are many more options for distributing erotic material now than there were back in the 1980s, including social networking websites, mobile/wireless devices and adult dating websites.  Linz said that there are numerous adult dating sites and hookup sites in which people with “common sexual interests” can interact.

The adult dating sites mentioned during Linz’ testimony included AdultFriendFinder.com, HornyMatches.com, XDating.com, AmateurMatch.com and LetsBang.com, among others.

Murray asked Linz how many non-commercial erotic images are available these days, and he estimated that the number is “tens of millions, if not more.” When Murray asked Linz if he had ever seen a 2257 compliance mark on any of those non-commercial erotic images, Linz replied that he had not.

U.S. District Judge Michael Baylson also had some questions for Linz. Baylson, noting that many of people who have testified on behalf of the plaintiffs during this trial have been critical of 18 U.S.C. § 2257 but nonetheless favored strict age verification policies for porn companies, asked Linz if he thought 18 was a “good dividing line” for participation in porn? “Yes, I do,” Linz responded.

But when the judge asked Linz for his opinion on the “usefulness” of 2257, Linz said, “In theory, I think the rule — when originally conceived — might have been useful.”

During his cross-examination of Linz, Justice Department attorney Hector Bladuell brought up the fact that Linz has a long history of testifying in court in support of adult businesses (including porn companies and strip clubs). Bladuell pointed out that Linz had been a witness for the Free Speech Coalition in previous court cases and that his testimony this morning was not the first time he had offered testimony in support of that organization.

Bladuell brought up the “secondary effects  doctrine,” asking for Linz’ perspective on the effects that brick-and-mortar adult businesses have in a community. Linz testified, “My claim is that they are no better or no worse than other businesses in the community.” 

When Bladuell seemed to be questioning Linz’ qualifications, Baylson objected and said of Linz, “I think he’s qualified as an expert.”

Bladuell asked Linz about the terms that had been searched online using Google, such as “MILF” and “child pron.” You didn’t type in those words yourself, did you, Bladuell asked? That is something that Jeffrey J. Douglas of the Free Speech Coalition did, isn’t it? “That is correct,” Linz replied.

Bladuell pointed out that during Murray’s direct examination of Linz, the UC Santa Barbara professor said that he had done extensive research on the subject of child pornography and that expert anti-child pornography researcher Janis Wolok — one of the witnesses who has testified for the Justice Department during this trial—had been one of his sources of information.

Bladuell asked Linz if he had done any research that was specifically on illegal porn involving adolescents who were under 18 as opposed to pre-adolescent children; Linz responded that he had not.

Bladuell questioned the validity of the porn-related FSC/Linz research on Google searches because some of them involved the word “pron” rather than the word “porn.”

But Baylson seemed to defend their use of “pron” as a search term, saying, “My understanding is that if you search child porn, Google will not execute that search.”

Bladuell also brought up the fact that some of Linz’ porn-related research involved using the adult tube site PornHub.com. Bladuell questioned Linz’ estimate that only 1 percent of the sexually explicit images available are child pornography and said that on PornHub.com, the images described as part of the “teen” genre accounted for “more than MILF and mature combined.”

Bladuell asked Linz if he was aware that Wolok had testified in this case. Linz said of Wolok, “I admire her work very much.”

The subject of adult dating sites and hookup sites also came up during Bladuell’s cross examination of Linz. Bladuell, trying to demonstrate that some minors might attempt to use an adult dating site like AdultFriendfinder even though such a site is designed for adults only, asked Linz: do 13-year-olds or 14-year-olds get FriendFinder accounts and try to pass themselves off as adults? Linz replied: “I do not doubt that that occurs.”

After Linz’ testimony, Baylson about an hour offering his opinions of the witnesses in this case and mentioned the witnesses one by one.

In addition to Linz, the witnesses who have testified on behalf of the plaintiffs in this trial have included erotica photographer Barbara Nitke, who spent much of the 1980s taking stills on the sets of adult films in New York City; veteran adult film star and sex educator Nina Hartley; First Amendment attorney Jeffrey J. Douglas, who serves as chairman for the FSC’s board of directors and has been representing clients in the adult industry since 1982; New York City-based Dr. Betty Dodson, a sex educator and leader of the sex-positive feminist movement; Dodson’s business partner Carlin Ross, also based in New York City; Dian Wilson, officer manager for the North Carolina-based, sex education-focused Sinclair Institute; San Francisco-based sexologist Carol Queen; Tom Hymes, senior editor for AVN; Dr. Michelle Drouin an associate professor of psychology at the University of Indiana, Purdue; Ohio-based David Levingston, a former photojournalist who now focuses on erotic photography; and photojournalist Barbara Alper.

And in addition to Wolok, witnesses who have testified on behalf of the Justice Department have included Charles Joyner and Stephen Lawrence, both of whom conducted 2257 inspections for the FBI in 2007; and anti-porn feminist Gail Dines, who is the author of the anti-porn book “Pornland: How Porn Has Hijacked Our Sexuality” and was a founding member of an  anti-porn organization called Stop Porn Culture. Dines is a professor of sociology and women’s studies at Wheelock College in Boston and is known for her extreme disdain for the adult entertainment industry. 

The judge was somewhat critical of Dines’ Friday, June 7, testimony, saying, “I thought some of her statements were valuable. I thought she was very biased against the porn industry.” And Baylson also had a problem with Dines’ assertion that all porn is made strictly for profit.

Baylson also was somewhat critical of the testimony of Dian Wilson and Nina Hartley.

During her testimony, Hartley described the record-keeping that 2257 requires to be burdensome and expensive. Baylson, noting that Hartley was the only witness in this trial who has said that she used a “third-party custodian” to assist her with 2257 records, said that he puts a “low weight” on her 2257-related expenses.

Baylson said that “compared to the dangers of child pornography,” he doesn’t think that “record-keeping expenses” are “unconstitutional” for “people who are in the adult industry to make money.”

Similarly, Baylson didn’t express much sympathy for Wilson’s complaint that the Sinclair Institute incurs major expenses because of 2257 record-keeping. Baylson said that for a company that makes millions of dollars, he didn’t think that the cost of Sinclair’s 2257 record keeping was excessive or punitive.

Wilson, during her testimony, stressed that Sinclair’s adult videos are of an educational nature, but Baylson said that Sinclair’s material “also had a commercial aspect” and that the material’s “educational value was secondary.” 

But Baylson seemed to put more weight on the testimony of those who weren’t commercial adult film providers and felt that 2257 had a chilling effect on the type of material they wanted to produce. Baylson said that Hymes had a website called the Daily Babylon and was refraining from posting images he would like to post because of 2257; Baylson noted that according to Hymes’ testimony, 2257 “places a great burden on him that curtails what he would like to be doing on his website.”

Baylson noted that Dodson and Ross’ sex education-oriented website had an educational feature called the Genital Art Gallery and that they both testified that 2257 had a chilling effect on the Gallery.

Baylson also seemed to express some sympathy for the 2257 concerns of Barbara Alper, who testified last week that she would like to photograph an erotic gay event on Fire Island, New York but was worried about doing so because of 2257. Alper “wanted to comply with the law and always have people who were 18 or over,” Baylson said.

Baylson noted the 2257A concerns of Levingston, pointing out that he is a photographer who likes to take nude photos of “ordinary people” and that he differs from many commercial porn companies in that regard. Last week, Levingston testified that he is especially worried about 2257A but didn’t think that 2257 affected what he does. 

Baylson described Nitke as “a very credible person” and noted her concerns that she is “not able to function as freely as she would like to” because of 2257. Baylson recalled that last week, he asked Nitke some questions about the time and effort that she puts into maintaining her tax records. If Nitke considered keeping taxes records to be a burden but did it anyway and also considers 2257 to be a burden, what is the difference between the two, Baylson asked her last week? And Nitke responded that she considered paying taxes to be her civil responsibility; Nitke felt that taxes had value for society but that 2257 was an unnecessary burden. And this afternoon, Baylson said of Nitke’s June 7 testimony, “That was a distinction that she brought out very forcefully.”

Last week, Queen testified that she had an event called the Masturbatathon, which is designed to demonstrate that masturbation is a normal, healthy part of sexuality. Queen said that would like to film the event and show it some point in the future but has refrained from doing so because of her 2257 concerns. And when Baylson reflected on her event this afternoon, he noted that Queen’s event had the goal of “helping people deal with their sexuality.” Baylson described Queen’s event as something that some people might find to be unusual but nonetheless said that her “testimony deserves weight.”

Baylson discussed the testimony of two witnesses who had done research on sexing, the act of nude or erotica photos being privately transmitted electronically via mobile/wireless devices.  Those witnesses were Dr. Michelle Drouin and the University of Michigan’s Dr. Mark Zimmerman, both of whom testified on how common that practice has become. Zimmerman testified that in a survey of people in the 18-24 age bracket, 30 percent of the people surveyed had sent sexts, while 40% had received sexts — and Drouin, during her testimony, estimated that approximately one-third of young adults, aged 18-24, have engaged in sexting. Drouin also estimated that approximately 10 million young adults have engaged in sexting.

And this afternoon, Baylson said of Drouin and Zimmerman, “I found them credible, but I’m not sure what weight is attached to that” testimony.

2257 laws do not mention sexting specially, but some critics of 2257 have expressed concerns that 2257 might apply to the millions of youths who have sent sexts.

Baylson described the testimony of Joyner and Lawrence as informative and was impressed with the way they compared the procedures used in the FBI’s 2257 inspections of 2007 to the procedures used when an actual search warrant is involved (such as a drug raid or a raid for white-collar crimes).

Baylson said that “there was no risk of destruction with 2257 records” because there would be no incentive or motivation for porn companies to destroy them. Critics of 2257 have alleged that 2257 inspections amounted to warrantless searches, but Baylson didn’t express any sympathy for that viewpoint when he discussed the testimony of FBI agent Lawrence and former FBI agent Joyner.  

During his analysis of the witnesses, Baylson commented that the issues raised in Free Speech Coalition vs. Holder bring to mind a scene in a well-known mainstream Hollywood movie about the founder of Hustler; the movie he was referring to was obviously 1996’s “The People vs. Larry Flynt” (which starred Woody Harrellson as Hustler/LFP founder Larry Flynt, Richard Paul as the late Rev. Jerry Falwell, and Courtney Love as Flynt’s fourth wife, the late Althea Leasure), although Baylson did not mention the film by name.

Baylson said that during that film, there was a scene in which a 17-year-old girl wanted to apply for a job as a stripper — and when she was asked if she was 18, she replied that she was almost 18 (Leasure was only 17 when, in 1971, she first met Flynt and applied for a job as a stripper in his Hustler Club in Columbus, Ohio).

Baylson said of that scene in the movie, “I thought that graphically pointed out the issue I see in this case.” That scene, Baylson said, demonstrated that there are, in fact, some underage girls who want to work in various aspects of adult entertainment and that their desire to participate is a concern that should not be taken lightly.

Baylson also reflected on how much more plentiful sexually explicit images are now than they were in the past. Baylson said: “The depictions of sex in languages and images makes some people comfortable and some people very uncomfortable. We see some things in movies now that would not have been tolerated when I was a young lawyer in the 1960s and 1970s.”

Baylson said that in his view, obscenity is as illegal now as it was in the past. But he was quick to add that what might have been considered obscene before would not be considered obscene these days. Baylson said: “It is my view that obscenity is a concept that is not covered by the First Amendment, but the definition of obscenity has changed over the years.”

Baylson also said, “Child pornography is an evil practice … and all of the witnesses in this case agreed … that child pornography is criminal.”  But exactly how the law should go about protecting minors from predators is where the two sides of this case have strong disagreements, Baylson said. The judge said that although it is clear that the plaintiffs in this case and the witnesses who have testified on their behalf are in agreement that minors should be kept out of sexually explicit material, the two sides obviously have different views on how the United States’ criminal justice system should go about enforcing that prohibition.

Although 2257 is still on the books, there have not been any 2257 inspections by the FBI since 2007. Those 2257 inspections occurred when George W. Bush was president of the U.S., but there have been no 2257 inspections during the presidency of Barack Obama. However, the plaintiffs in this case are concerned that 2257 inspections will be brought back at some point — if not during Obama’s second term as president, perhaps under the next president (be it a Democrat or Republican).

The trial for Free Speech Coalition vs. Eric Holder began in Philadelphia over a week ago on Monday, June 3.

The case involves federal record-keeping law 2257, which the plaintiffs allege places an unfair and unnecessary burden on companies or individuals presenting any sort of erotic depictions.   

During the trial, Murray has conducted all of the questioning on behalf of the plaintiffs (FSC attorney Lorraine Baumgartner has not done any of the questioning). With the other side, however, the different attorneys have taken turns questioning the witnesses. Today, all of the cross examination was handled by Bladuell.

It appears that this trial may conclude this Monday, June 17. Dr. Frank Biro and Philip Stark are scheduled to testify on behalf of the Justice Department on Monday, and if things go as scheduled, they will be the final witnesses in the case.

After their testimony, attorneys for both sides may give their closing arguments. “Each side will have an hour for the argument,” Baylson told the FSC and Justice Department attorneys this afternoon.

How Baylson will ultimately rule in this trial remains to be seen. But whatever his decision, one of the two sides will no doubt file an appeal immediately.

On Wednesday, June 5, Baylson said that although the plaintiffs in the case are facing an “uphill battle” in their efforts to have 2257 declared unconstitutional, he understood why they found some aspects of 2257 to be burdensome and problematic—and he said that ideally, he would like to see the two sides work out some type of compromise that they could both learn to live with.

Perhaps that compromise, Baylson told the attorneys for both sides on June 5 (the third day of the trial), could involve eliminating certain aspects of 2257 (specifically, the parts the plaintiffs find to be the most objectionable) without throwing out the entire law.

Baylson has noted the possibility that Free Speech Coalition vs. Holder could eventually end up being appealed all the way to U.S. Supreme Court, and should that happen, the high court has the option of either deciding to hear the case or deciding against hearing the case.

Baylson has a long history in Philadelphia legal circles.  Born in Philadelphia in 1939, Baylson is a 1964 graduate of the University of Pennsylvania Law School. He was an assistant district attorney in Philadelphia in the late 1960s but spent much of the 1970s and 1980s in private practice. Baylson, a George W. Bush nominee, has had a seat on the U.S. District Court for the Eastern District of Pennsylvania since 2002.

Free Speech Coalition vs. Holder is scheduled to reconvene on Monday, June 17, in Baylson’s courtroom at the James A. Byrne Federal Courthouse in Philadelphia. The trial will convene at 9:15 a.m. Eastern time.

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