PHILADELPHIA—Judge Michael M. Baylson wasted no time getting down to the business of deciding the constitutionality of 18 U.S.C. §2257 and 2257A (hereafter "2257"), the federal recordkeeping and labeling law that's been on the books in one form or another since 1988. Court convened promptly at 9:15 a.m. in Courtroom 3810 of the James M. Byrne Federal Courthouse at 7th and Market Streets. Representing Free Speech Coalition (FSC) and 16 additional plaintiffs were J. Michael Murray and Lorraine Baumgartner, while the government mustered U.S. Department of Justice (DOJ) Civil Division attorneys Kathryn Wyer, Nathan Swinton, Hector Bladuell and James Schwartz.
By agreement, neither side gave an opening statement, although both had filed trial briefs setting forth much of what they would have said in such statements.
Before testimony was taken, there was argument over whether the plaintiffs would be able to use the deposition of FBI Special Agent Charles Joyner during the testimony, as provided for under Federal Rule 32 because Joyner was considered a "managing agent" for the 2257 inspections that took place in 2005-06, and also because he was more than 100 miles from the courthouse. Wyer objected, citing cases which held that "live testimony is the preferred form of testimony," and arguing that the plaintiffs had never told her, as is legally required, which parts of the deposition they were going to use. Judge Baylson took the issue under advisement and said he would issue a ruling later.
The day's first witness was Eugene Mopsik, executive director of the American Society of Media Photographers (ASMP), a trade association for that craft since 1944. On questioning by Murray, Mopsik said that the only qualification to join the Society was that one must make one's primary income from selling photographs, and that his members had different photographic specialties, including journalism and fine arts. He later noted that of 6,000 members recently surveyed, 400 (including plaintiff Barbara Alper) also do erotic photography and even sexually explicit images, including some for medical textbooks and the like.
Murray then recited several of the requirements of 2257 to Mopsik, and asked what burdens he thought those would impose on his members. The witness replied that what with digital cameras enabling photographers to shoot thousands of images of a single event, if they needed to obtain identification documents on each subject who was engaged in sexually explicit conduct in the shot, and keep cross-indexed files on each of them, it would be very difficult. Even more difficult, he said, would be a requirement that an approved 2257 label be attached to each image, since although it could be included in the photo's "metadata," affixing the label to a printed copy of the photograph itself would require copying both the image and 2257 label to third document. He was also unclear as to how that label could be "prominently displayed," as required by the law—nor how his members, many of whom travel frequently for weeks at a time, could be present in their offices (which were often in their homes) for the required 20 hours per week, waiting for inspectors to show up. (The FBI team which did the inspections in 2006 has since been disbanded, so it's unclear who would show up to carry out the inspections presently.)
When it came Wyer's turn to question the witness, she brought out that many ASMP members also shoot video almost exclusively, and that ASMP provides its members with model release forms, including one titled "sample model release for adult," for their use. He also testified that photographers "use their own judgment" regarding whether to ask a model for age verification, and agreed with Wyer's suggestion that it was sometimes not possible to tell a young model's actual age simply by looking at her/him.
Wyer then asked if a photographer named Craig Morey was an ASMP member, and when Mopsik said he was, she pointed him to some images of young models on Morey's website. She also got him to agree that most of his members are not familiar with the requirements of 2257, and that he doesn't know whether or how they keep records of their models. Then, after an admonition from the judge to keep her questions related to the ones asked on direct examination, Wyer changed the subject to photographer Ned Rosen, and got Mopsik to admit that he'd seen nude images on Rosen's website. It was unclear how many of Wyer's questions related to the issues at hand, but that might become clear through later testimony.
The next witness called was defense attorney Jeffrey Douglas, who also serves as board chair of Free Speech Coalition, and represents many clients regarding their compliance with the 2257 regulations. Murray questioned Douglas regarding how long he'd represented clients in the adult industry, and found that Douglas had started taking adult clients in 1982.
Murray also got Douglas to trace the history of the 2257 law: Its enactment as a result of findings by the Meese Commission, which he testified had "declared war on the pornography industry"; the original lawsuit against 2257 by the American Library Association; the various changes in the regulations over the years; and how the law was never enforced for about 15 years after its enactment.
Douglas also gave a history of the Free Speech Coalition, from its beginnings in the early '90s as a simple trade organization to its current activities, which include educational services, lobbying, newsletters to members and the development of STD testing protocols. He noted that it currently has 800 members, four of which current members—Wicked Pictures, K-Beech, Diabolic Video and Darkside Entertainment—had been inspected by Joyner's team in 2006.
Murray then asked about how many underage performers had ever been found in the industry, and Douglas noted that although there had been several accusations, before 2257 was enacted, there had been only two, the most famous of which was Traci Lords. (The other was Alexandria Quinn.) He said that three others had been accused, but were found to have been adults, and for the roughly 25 years since then, just four performers had been accused of being underage. He also noted that all had presented real government-issued IDs to producers, but that such IDs had been obtained fraudulently.
Douglas was then asked, if 2257 disappeared tomorrow, would the industry begin using minors in its productions? No, Douglas replied, both for moral reasons and because child pornography laws still exist—and attempting to recall thousands of DVDs because they contained an underage performer would be prohibitively costly, not just to physically recall the disks, but also to reimburse retailers and customers who'd bought the product. He also testified that for a company to have been found to have used an underage performer would hurt that company's good will among retailers, who would never again trust that company's product—and that besides, since all the performers in a movie are assumed to be adults, there would be no point in using an underage performer deliberately, since that person would be assumed to be an adult also; there would be no benefit to the producer.
Douglas further testified regarding the difficulty in complying with various 2257 requirements, noting that even minor errors are considered felonies which could send a producer to prison for years. He also detailed the many places that one company' sexually explicit image could appear—in the movie itself, in trailers for the movie, in advertising, on packaging, in magazine layouts, on retail websites, etc.—and how each time the image was used in a different way or medium, a new 2257 record had to be created. He spoke particularly about the problems facing secondary producers, who need to keep records for every person on every package sleeve of every DVD they sell... even if the only portion of the performer that appears is his cock, or her tits and/or pussy, which Douglas said would be prohibitively difficult to identify, if they could be identified at all!
Regarding 2257 records, "Perfection is the minimum standard to avoid committing felonies," Douglas said.
Murray then asked about 2257's effects on retailers. Douglas explained that many retailers don't necessarily know which performers appear on DVD packages, and would have to trust producers to supply accurate ID records; also, not being experts, they might not know if a 2257 label had been properly affixed to the product, or in the case of sealed magazine packages, whether it had been affixed at all. He also noted the difficulties in figuring out whether the label that appears as the beginning (and sometimes the end) of a movie meets the requirements of the law—is it displayed long enough? The law is silent on what duration that should be, he said—and also commented on how difficult it would be for some retailers to be available 20 hours per week for inspections.
Finally, Murray asked what could be done to make the law more equitable and easier to follow. Douglas noted that FSC had suggested, in its comments to one of the revisions of the regulations, that the government create standards for third party recordkeepers, but that as things stand now, if a third party recordkeeper screws up the IDs or indexing, it's the producer who goes to prison for that. Douglas also addressed what he thought was Congress's intent in creating 2257, and charged that if the law was meant to prevent minors from appearing in adult content, it would fail. He also suggested that producers should be allowed to share performers' ID documents, and noted that requirements like how big the font should be for 2257 labels in no way served the interest of keeping kids out of porn.
When it became Wyer's turn to cross-examine, her first question was to note that Douglas had not testified regarding the impact of child pornography on the children themselves—a question to which Murray objected as irrelevant, and the judge sustained the objection. Wyer then changed topics, asking who could be a member of FSC, to which Douglas replied that the member had to have a "commercial relationship with the adult industry," and later admitted that even those who sold supplies to adult producers could join. Wyer then asked if several entities, including Sinclair Institute and the other producers previously mentioned, and performer/[producers Dave Cummings and Nina Hartley were producers, but the judge cut her off, complaining that the answers were already in the briefs filed by both sides.
After the luncheon recess, Wyer asked Douglas to look at various Dave Cummings Productions' DVD packaging, and he agreed that some young-looking performers appeared. She then attempted to have Douglas testify as to Cummings' business practices, but the judge cut her off, since Douglas had said he had no knowledge of that. She then produced several invoices from FSC to members, and asked Douglas about those. She also questioned how many members FSC had both before and after it filed its original 2257 suite in Colorado, and Douglas admitted that about 1,200 had joined after the judge in that case issued an order prohibiting FSC members from being inspected while the case was in process, but that after that order lapsed, many did not renew. Douglas agreed, but in answer to Murray's questions later, explained that the company hired to process new membership applications after the order had been issued had failed to keep contact information on some of the new members, while others who had bought memberships for each of their retail outlets later learned that they could buy one blanket membership for all their stores; hence the decrease in member numbers.
The purpose of some of the questions regarding FSC members who had been inspected appeared to relate to whether the organization has standing to bring the current lawsuit, but it is unlikely that Judge Baylson will rule that it doesn't, considering that the Third Circuit Court of Appeals had treated the organization's standing as already established.
The next plaintiff witness was Dr. Michelle Drouin, an Associate Professor of Psychology at Indiana University, who testified that she had conducted two studies, one in 2009 and another in 2011, regarding young adults' use of sexting. She said she found that between 37 and 49 percent of the 744 participants in her first study had sent sexts, while in the second, more detailed study, which included examination of six studies performed by others, about 20 percent of 18-24-year-olds had sent either images of the person masturbating or simple nude shots to their partners. She extrapolated those figures to conclude that about 10 million young adults have sexted.
However, when Drouin was cross-examined by Swinton, she admitted that several of the studies she had used to supplement her own study did not distinguish between merely nude sexts and sexts that contained sexually explicit conduct, and that the questions asked during those studies did not necessarily define such terms as "nude" or "sexy." Swinton went on to ask about how she reached her conclusions, and focused in on some of the language in her report, notably the word "approximately," which he tried to get Drouin to define... until Judge Baylson ruled that it was unnecessary for her to do so.
On redirect examination, Murray asked, if sexters had to maintain age records on the people in their sexts, had to add a 2257 label to each image and had to be available for inspections 20 hours per week, would that have an effect on the sexters? After noting that sexters don't keep such records, Drouin agreed that that would be relevant to the current lawsuit.
The day's final witness was Dian Wilson, office manager of the Sinclair Institute, which produces sexually explicit sex education videos mostly for mature adults. On direct examination, she testified that most of the performers in Sinclair's videos were "mature" adults, but that the company hired younger models for non-sex photo shoots for the videos' box covers. However, she said, when 2257 was expanded to include models engaged in simulated sexual conduct, she began keeping 2257 records on the models, even though they weren't actually having sex. She said she also had to keep such records on the videos Sinclair sold which were produced by third parties, and that when she offered them in Sinclair's catalogs, the company became a "secondary producer" for those videos—and that it often took several days, up to as much as two months, to get ID documents from those movies' producers.
Wilson went on to detail the time and expense Sinclair undertakes to comply with 2257, including giving each image an individual identifying number, since an image could be used in several different venues such as magazine ads or online trailers. She even related that the company held "2257 fire drills," where employees would pretend to be FBI agents looking to inspect records, and Wilson and her associates would have to produce all the records necessary to comply with such an inspection. She said the drills took several hours to accomplish. She estimated that fulfilling the 2257 requirements cost about $75,000 in employee time and another $12,000 to reprogram the company's computers to maintain the security of the records.
Judge Baylson allowed DOJ attorney Hector Bladuell to begin his cross-examination of the witness, and he brought out that a couple of the cast lists provided by Sinclair of its own productions did include the fact that some 18- and 19-year-olds did appear in the cast, but that's as far as he got before Judge Baylson recessed the trial for the day.
Check back tomorrow with AVN.com for more on this important legal battle.