FSC, Justice Dept. Attorneys Give Closing Arguments in 2257 Trial

Jun 17, 2013 4:00 PM PST

PHILADELPHIA — Attorneys for the Free Speech Coalition and the Justice Department gave their closing arguments in the eighth and final day of the trial for Free Speech Coalition vs. Holder.

Those closing arguments at Judge Michael M. Baylson's courtroom at the James A. Byrne Federal Courthouse in Philadelphia were preceded by testimony from two witnesses for the Justice Department: Dr. Francis Biro, director of adolescent medicine for the Cincinnati Children’s Hospital in Cincinnati, and Dr. Philip Stark, professor of statistics at UC Berkeley.

The case involves federal record-keeping law 18 U.S.C. § 2257, which the plaintiffs allege places an unreasonable hardship on companies or individuals presenting any sort of erotic depictions.

Baylson entered the courtroom around 9:20 a.m. Eastern time, announcing, “Today looks like the last day of trial.”

And a few minutes after that, Justice Department attorney Hector Bladuell called Biro to the witness stand. Bladuell asked Biro to cite his area of expertise, and he explained that his specialty was “adolescent medicine ... specifically, puberty.” Bladuell, trying to show why the Justice Department believes that 2257 is necessary, asked Biro how quickly adolescent girls are maturing physically these days — and Biro said that in some cases, adolescent girls are maturing physically before they are maturing emotionally.

Biro said he is observing an “increasing disparity between the onset of pubertal maturation and brain development.” That disparity, Biro testified, can lead to risky sexual behavior.

Bladuell asked Biro if he could cite any particular examples of underage females he encountered in his work who looked older than they actually were; Biro replied that he remembered “one young lady who, by the age of 12, was physically mature .... She dressed rather provocatively, like a young adult.”

Bladuell showed Biro various photos of young females, asking him how easy or difficult it was to determine their age based on their physical appearance. Bladuell, showing Biro one of the photos, asked if he was “confident” that she was an adult. Biro replied: “I’m not confident that she’s over 18. I’m not confident that she’s under 18.”

Bladuell showed Biro another photo of a young female, and Biro said, “I can’t say that’s under 18 or over 18.”

When Bladuell asked Biro how difficult it could be for an under-age girl to pass herself off as a legal adult. Biro testified, “I think it’s possible for  someone who is 17 years of age to apply makeup and use hairstyles to make themselves look like they’re in their mid-twenties.”

Biro never actually mentioned 2257 during Bladuell’s direct examination, but it was evident what Bladuell wanted to demonstrate: with adolescent girls, in many cases, maturing physically at a faster rate than adolescent girls of the past, 2257 is necessary in order to decrease the chances of them appearing in porn. And during his cross-examination of Biro, FSC attorney J. Michael Murray set out to counter that argument.

One of the first things Murray asked Biro was, “Pubertal maturation is not an exact science, is it?” And Biro replied, “No, it is not.”

Murray asked Biro: is it true that most children under the age of 13 will not be confused with adults? “Generally,” Biro replied, “I believe that to be true, yes.”

And is it accurate to say that most 14-year-olds, Murray asked, won’t be mistaken for adults? “Correct,” Biro responded.

Murray asked Biro if he could tell roughly what percentage of the people in the courtroom could be mistaken for minors and what percentage were clearly adults. Biro responded that perhaps there were a few, but not many. One of the people in the courtroom who Biro cited as an example of someone who looked like she might be mistaken for a minor was the 24-year-old daughter of Lorraine Baumgartner, the attorney who has been assisting Murray in this case.

During his cross examination of Biro, Murray brought up the fact that Biro has been a witness in a case that Murray had tried 17 years ago in 1996: Connection Distributing v. Reno.

Murray also asked Biro if he considered himself an expert on sexually explicit material. No, Biro replied, he did not.

Murray asked Biro what percentage of his time is devoted to actually seeing patients. Biro replied, “This past year, I’ve spent over 45 percent of my time seeing patients.”

Biro’s testimony was followed by the testimony of UC Berkeley’s Phillip Stark, who was asked about the research methods used in polls and surveys. Stark testified that for surveys, a “random sample” is superior to a “convenient sample” (which typically involves asking questions of those who are more readily available).

The UC Berkeley professor was asked to discuss the testimony of two FSC witnesses who testified about sexting (the digital transmission of sexual or erotic images via mobile/wireless devices) in this trial: Dr. Michelle Drouin of the University of Indiana, Purdue and Dr. Mark Zimmerman (a professor of public health at the University of Michigan).

Both of them testified that millions of American youths are sending sexts, and today, the Department of Justice attorneys tried to discredit their testimony. Drouin and Zimmerman’s conclusions on sexting, Stark testified today, are problematic because their research included the use of “samples of convenience” and didn’t rely on random samples exclusively. Drouin’s research, Stark testified, included the use of volunteers — and volunteers are an example of a convenience sample rather than a random sample.

Murray, during his cross examination of Stark, set out to demonstrate that convenience samples can, in fact, be a good source of information. Murray pointed out that convenience samples are used by Harris Interactive, one of the top polling companies in the United States. And Harris’ polling, Murray pointed out, is widely regarded as reliable. Murray mentioned that according to one of Harris’ polls, one in five young Americans had engaged in sexting.

Murray asked Stark if he had ever studied sexting himself; Stark responded, “No, I haven’t.” Murray also asked Stark whether or not he considered sexting to be an “isolated phenomenon,” and Stark replied, “I don’t have an opinion.”

Murray also questioned the idea that random sampling is the only valid method for polls and surveys when he asked Stark, “Without doing a random sample poll, can you tell me that millions of Americans will vote for the Republican candidate” three years from now in the presidential election of 2016? “Yes,” Stark responded.

And without conducting a random sample poll, can you tell me that millions of Americans will vote for the Democratic presidential candidate in 2016, Murray asked? Stark replied, “Yes … it isn’t statistics. It’s common sense.”

Another thing Murray brought up during his cross examination of Stark was the amount that Stark earns during trials. Stark testified that he has been charging a rate of $1,200 per hour. “I raised my rate from $1,000 to $12,000 on Jan. 1,” Stark told Murray.

After Stark’s testimony came a 30-minute lunch recess followed by the closing arguments of the opposing attorneys in this case — first Murray, then Department of Justice attorney Kathryn Wyer. Both were given about 45 minutes for their arguments.

Baylson told the attorneys that in this case, “the plaintiffs have the burden of proof on the First Amendment issues, while the defendants have the Fourth Amendment burden of proof.”

Murray, before beginning his closing argument, said, “I want to thank the court for its careful attention to the evidence” — and Baylson responded, “And I want to thank you for being well-prepared.”

Murray, during his closing argument, said that if 2257 and 2257-A are struck down on constitutional grounds as he is hoping, that will not mean that “Congress will not be without a remedy.” That congressional remedy, Murray said, can be a new law that is “narrowly tailored, less burdensome.” During the trial, Murray repeatedly demonstrated that the plaintiffs in this case have no problem with age verification or making sure that only adults appear in erotic material — they just don’t think that 2257 is the best vehicle for accomplishing that. And he continued with that theme during his closing argument today, when he attacked 2257 on both First Amendment grounds and 4th Amendment grounds.

2257, Murray went on to say, is problematic because it is much too broad. Murray said that 2257 not only poses a problem for companies selling commercial porn, but also, for private individuals who are offering any sort of erotic images — and that includes photographers and sex educators as well as millions of young Americans who are sending sexts. Many of those youths who are sexting, Murray told the court, don’t know about 2257 and don’t realize that they are required to maintain 2257 records for all of the nude or erotic images they are sending via mobile/wireless devices. And people who use adult dating sites, Murray said, are also vulnerable to the demands of 2257.

“Private, noncommercial” communications, Murray emphasized, are not exempt from 2257 — and many Americans who are sending sexts don’t know about 2257’s requirement that they are required to tell the FBI that they’ll be available for 2257 inspections 20 hours per week. Murray pointed out that according to Dr. Daniel Linz (one of the FSC’s witnesses in this case), “tens of millions of Americans” are sending sexts.

Murray said that with 2257, the word “lascivious” is used in much too broad a fashion. Any nudity, Murray told the court, can be considered a “lascivious exhibition” under 2257. And Murray added that when simulated acts — be it simulated sex or simulated masturbation — come into play, the 2257 net can ensnare even more Americans. “You don’t even have to have nudity for images of simulated sex,” Murray said.

Continuing to demonstrate that 2257 is overly broad, Murray said “I don’t know how anyone” can say that 2257 is “narrowly tailored.”

Murray’s closing argument also included some discussion of the amount of people over 25 who are participating in erotic depictions. During her testimony for the Justice Department on June 7, anti-porn feminist Gail Dines tried to paint the adult entertainment industry as a business that is obsessed with adolescent girls — and Murray’s closing statement countered that claim with an abundance of data showing how plentiful people over 25 are in adult films, erotic photography and sex education-based material. Murray, repeating testimony heard during the trial, said that with Nina Hartley’s adult material, 66 percent of the participants are over 25. With erotica photographer Barbara Nitke, Murray said, 63 percent were estimated to be over 25. With Vivid Entertainment (which Murray described as “one of the major producers of adult films”), the figure was around 60 percent. And with Dr. Betty Dodson, 75 percent were over 25.

Murray, during his closing argument, was critical of the way the FBI handled 2257 inspections in 2007. Those inspections, Murray said, were a violation of the 4th Amendment to the U.S. Constitution (which prohibits unlawful search and seizure) because they amounted to searches without search warrants.

The FBI “couldn’t have accomplished what they did without a search warrant were it not for 2257,” Murray told the court. Murray went on to say that the FBI “did it without a warrant, without probable cause .... That, by definition, is a search .... They needed a warrant. They needed probable cause.”

Murray also brought up the subject of third-party record keeping. “A third-party record keeper doesn’t cure the problem ... or relieve the person of liability if the third-party record keeper makes a mistake.”

Murray described 2257 as unconstitutional on both 4th Amendment and 1st Amendment grounds, and Wyer tried to rebut that assertion during her closing arguments.

Wyer said that the witnesses for the plaintiffs in this case fall into three different categories: (1) adult industry professionals, (2) photographers, and (3) people involved in sex education. The witnesses Wyer placed in the first category included veteran adult film star Nina Harley (who Wyer referred to by her real name, Marie Levine); Tom Hymes, senior editor for AVN; and Dian Wilson, officer manager for the North Carolina-based, sex education-focused adult film company the Sinclair Institute. Wyer said that although Sinclair thinks of itself as having an educational slant, it is still a commercial porn company. And Wyer said that although Hymes’ doesn’t think of his website, The Daily Babylon, as a porn site per se, his main focus is his full-time job at AVN—and therefore, she places him in the first category.

The witnesses Wyer placed in the second category—the category for photographers — included Barbara Nitke, who spent much of the 1980s taking stills on the sets of adult films in New York City and has concentrated on fetish/BDSM photography in more recent years; Ohio-based David Levingston, a former photojournalist who now focuses on erotic photography; and photojournalist Barbara Alper.

The witnesses Wyer placed in her third category—the category for sex educators — included San Francisco-based sexologist Carol Queen; New York City-based Dr. Betty Dodson, a leader of the sex-positive feminist movement; and Dodson’s business partner Carlin Ross, who is also based in New York City. Wyer said that she didn’t see a need for an “exemption from the requirements” of 22577 for Dodson, Ross or Queen.

Wyer said that for the adult industry professionals, 2257 is not unreasonable in light of the “substantial number of young-looking performers” one finds in porn. And Wyer said of photographers who were critical of 2257 during this trial (including Barbara Nitke), “none of these photographers are engaged in non-commercial activity.” Wyer also said that there can easily be an “overlap with photography on one hand and pornography on the other (hand).”

Wyer, addressing the concerns that the sex educators had about 2257, said that their complaints are “based on their misunderstanding of the requirements” of 2257.

Wyer disagreed with the plaintiffs’ argument that there is a strong element of “subjectivity” in 2257. Wyer said: “All that is required is that you check the ID of everyone” and went on to reference the “plainly legitimate sweep of this statute.”

Wyer, trying to illustrate the need to keep 2257, said that there is a “strong demand for very youthful-looking performers in sexually explicit videos.” Wyer noted that according to Dines, the word “teen” has been used extensively to market adult content.

Wyer also took issue with Murray’s frequent references to adult entertainment performers who were over the age of 25. Wyer said: “25 is not any kind of magic number when it comes to determining who is mature …. We’ve heard here that a 28-year-old can be confused with someone who is 17 …. When it comes to determining who is mature, there is "no cutoff."

During the trial, there has been some discussion of the effect that 2257 can have on adult dating sites such as AdultFriendFinder.com. And today, Wyer disagreed with the assertion that the erotic depictions on adult dating sites necessarily constitute private communications. “Those are not private,” Wyer said of sexy or erotic photos posted by users of adult dating sites.

Wyer concluded her closing arguments by reiterating her desire that 2257 he upheld as constitutional. “We ask the court to uphold the validity of this statute,” Wyer said.

After Wyer finished, Baylson said, “I want to thank all of you for being very diligent and well-prepared.” 

With the testimony and closing statements having concluded in the trial for Free Speech Coalition vs. Holder, post-trial briefing will occur. Baylson asked that the “opening brief” in this case be ready for Friday, June 28 and that a “reply brief” be ready by Friday, July 5.

The trial for FSC vs. Eric Holder began two weeks ago on Monday, June 3. Representing the FSC and 16 other plaintiffs in this case have been Murray (who is a partner in the Cleveland, Ohio-based law firm of Berkman, Gordon, Murray &  DeVan) and Lorraine Baumgartner. Attorneys James Schwartz and Nathan Swinton joined Wyer and Bladuell in representing the Justice Department during the trial. During the trial, Murray conducted all of the questioning on behalf of the plaintiffs (Baumgartner didn’t do any of the questioning). But with the other side, the different Justice Department attorneys took turns questioning the witnesses.  

A long list of witnesses testified in Baylson’s courtroom over the course of two weeks. Witnesses for the plaintiffs included not only Nina Hartley, Betty Dodson, Carlin Ross, Carol Queen, Tom Hymes, Dian Wilson, David Levingston, Dr. Daniel Linz and Barbara Alper, but also, 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.

The Justice Department’s most controversial witness was the Manchester, England-born Gail Dines, who is a professor of sociology and women’s studies at Wheelock College in Boston and has often been compared to law professor Catharine A. MacKinnon and the late Andrea Dworkin (two other radical feminists known for being blistering critics of the adult entertainment industry). Dines 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. 

Another Justice Department witness who testified during this trial was anti-child pornography researcher Janis Wolak, a senior researcher at the Crimes Against Children Research Center at the University of New Hampshire. Unlike Dines, Wolak didn’t make any statements that were overtly critical of adult porn or the adult entertainment industry; most of her testimony focused on her extensive research in the area of combating child pornography. In fact, FSC witnesses Linz testified that he greatly admired Wolak’s work and considered her to be a valuable source of information.

It remains to be seen how Judge Baylson will ultimately rule in Free Speech Coalition vs. Eric Holder, but some statements her made on June 5 during the third day of the trial offer some insights into how he views the issues raised in this case.

That day, Baylson said even though the FSC and other 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 the legislation to be burdensome. And Baylson said that he was hoping the two sides would be able to work out some type of compromise. Such a compromise, Baylson said, might involve getting rid of the elements of 2257 that the plaintiffs find to be the most objectionable and difficult to comply with without throwing out the entire law.

On Friday, June 14, Baylson offered additional insights on how he views the issues raised in this case when he evaluated the testimony given by witnesses for both sides. Baylson was somewhat critical of Dines’ testimony, saying, “I thought some of her statements were valuable. I thought she was very biased against the porn industry.” But he was also somewhat critical of parts of the testimony of Nina Hartley and Dian Wilson.

Both Hartley and Wilson testified that they went to considerable expense and trouble to maintain 2257 records and comply with the law, and Baylson indicated that he didn’t think of those 2257-related expenses as an attack on their constitutional rights, but rather, as part of the cost of doing business. Baylson said that he put a “low weight” on the 2257-related expenses that Hartley was incurring; Baylson added 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.”

Nor did Baylson express much sympathy for Wilson’s complaint that the Sinclair Institute is incurring significant expenses because of 2257’s record-keeping requirements. On Friday, Baylson told the court 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.

Baylson, however, seemed to put much more weight on the testimony of FSC witnesses who were not adult film/video producers  but felt that 2257 was having a chilling effect on the type of material they wanted to produce — including Betty Dodson.

On Friday, 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. And the judge pointed out that Hymes had a website called the Daily Babylon and was refraining from posting images he would like to post because of 2257.

Judge Baylson expects to make a decision in this case sometime in July.

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