PHILADELPHIA, Pa.—Perhaps the high point of plaintiff Tom Hymes' cross-examination in his and others' lawsuit against the federal recordkeeping and labeling law, 18 U.S.C. §2257/2257A, was when Justice Department (DOJ) attorney Kathryn Wyer asked him whether the law impacted his license to practice journalism.
Plaintiffs' attorney J. Michael Murray quickly objected, and Judge Michael M. Baylson himself asked whether there actually was a "license to practice journalism," but glossing over her gaffe, Wyer instead changed the question to inquire whether there were any objective criteria which defined who could be considered a journalist. Hymes readily admitted that not all web posters are journalists, but that the criteria would be "up in the air" and should be decided on a case-by-case basis.
Toward the end of her examination, Wyer returned to a couple of subjects that all of the DOJ attorneys had asked the plaintiffs: Are adult producers generally okay with checking performers' photo IDs to make sure they're adults, and keeping such records on file? (Most answered yes.) Is it easy to tell a person's age just by looking at them? (Most said no.) Since there might be several secondary producers between the producer of an original sexually explicit product and someone posting that footage online, is it difficult to trace a performer's age records back through the secondaries to the primary producer? (Most didn't think so.) Is it burdensome to put a 2257 compliance label on a website? (Links aren't difficult, Hymes said.) Did Hymes know that most sites use a link from their home page to the page with the compliance notice?
That was a topic that Hymes later said concerned him deeply, because he had looked at some adult tube websites just that morning and found that the 2257 compliance link on some sites led merely to a list of companies that had supplied clips for the site, not to photo IDs and/or model releases for performers in the particular scene in question.
But Murray delved into the issue more deeply, and drew out that while Hymes may not have problems with 2257 compliance links, he'd also have to abide by all parts of the 2257 statute and regulations, and he wouldn't want to break that law, so he had avoided adding questionable content to his site. Also, he objected to revealing the address of his home office in the compliance notice, and worried that even if he used a third party recordkeeper, if that person screwed up, it was Hymes who'd go to prison for the errors.
Murray then asked questions that he'd also asked of several of his clients previously: Do adult producers want to use minors in their productions? (No.) Besides requiring the primary producer to check performers' photo IDs, does 2257 do anything else to prevent minors from performing in sexually explicit content? (No.) Even if you can't tell a person's age just by looking at them, could you tell most of the time whether the person was a minor or an adult? (Most said yes.) With regard to identifying performers' ages, did he notice that there was a 2257 label on all DVDs released by the adult industry, which contained the name of the records custodian and the address where that person could be located? (Yes.)
Murray questioned Hymes a bit more about specific requirements of 2257, and drew out even more of his objections to it.
Murray next called actress (and plaintiff) Nina Hartley to the stand, and began his examination by asking her to trace her history in XXX—and her experiences with having her ID checked and filling out model releases even before 2257 was in force. Hartley noted that she didn't know of any producers who would want to use a minor in their productions, and thought there was a consensus in the business that "anyone wanting to use minors should be tied to an anthill in the hot sun."
Hartley also talked about her own experiences as a producer of her Nina Hartley's Guide sex ed videos, as well as her work as a sex-positive educator, giving lectures at colleges and elsewhere, which she described as a very important part of her career.
Murray then asked about Hartley's website, which has an archive of her webcasts as well as her online store. Hartley described how her webcasts sometimes featured solo masturbation and at other times she was joined by a guest for sex, and that she often answered fans' questions during the show.
But though Hartley made sure to keep copies of her guests' photo IDs and model releases, she testified that she had had trouble properly cross-referencing the information to comply with 2257, and that she worried about using her home address on the compliance notice.
But her biggest problem, she said, was that the very existence of 2257 "puts sexual speech in a different category from regular speech," and that by its very nature assumes that she's a criminal, using minors in sexual videos, when in fact there's no proof that she has ever done that. And when Murray asked if she would still check her fellow performers' IDs even absent that requirement in 2257, she said that of course she would, and added that that requirement did not prevent minors from using fake IDs to perform in adult fare.
On cross-examination, DOJ attorney Hector Bladuell brought out that Hartley had performed with many 21- to 25-year-olds on her shows, including Bree Olsen, but Hartley denied that she'd ever performed in her cam shows with anyone under 21, nor did she intend to do so. Under further questioning, she explained her relationship with PremiumCash, which manages her site and is her current records custodian, and that she made money not only from original visitors to her site, but also from people who linked through her site to get to others.
However, Bladuell made a point that one of the PremiumCash-affiliated sites featured on Hartley's site was "teen cams," and when asked, Hartley admitted that she couldn't say that all of the performers pictured in a screen-capture of the teen cam site link were necessarily all adults.
Bladuell then turned to other images on Hartley's site, pointing specifically to a photo of Hartley with 19-year-old Tara Lynn Foxx, which caused Hartley to joke that, "She was the first performer I worked with who was younger than my breast implants." She also admitted that Foxx had asked her for career advice, and that she had given it.
After asking some of the "usual questions"—Can you tell a person's age just by looking at them? Is it reasonable for producers to check IDs and keep copies? Did 2257 ever force her to stop a project she wanted to do?—he turned to some questions about using the word "teen" in adult advertisements. Hartley agreed that the word "teens' is used to indicate that performers in a movie were young, and when Bladuell asked if that meant that some viewers wished they could see actual minors engaged in sex, Hartley replied that they might.
"Why not use the term 'youthful-looking adults' instead of 'teens?'" Bladuell then asked. Hartley replied that 'teens' made for shorter, punchier advertising. Bladuell then inquired whether such advertising created a market for young adults in porn. "Yes," Hartley replied, "they're legal but youthful." However, she denied that many if any well-developed 13- to 17-year-olds were looking to get into the adult industry, but that some have tried, most notably Traci Lords.
Finally, Bladuell asked why there was a demand for child porn. Hartley replied, "Because pedophiles like to look at minors having sex," adding, "It's a crime."
On redirect examination, Murray elicited the information that it was "rare" for a 16- or 17-year-olds to appear in adult films, and Hartley said she only knew of two that had done it, and that it was not a serious problem in porn. Murray also brought out that the word "teen" on a box cover always meant 18- and 19-year-olds.
Finally, Murray asked Hartley if she were doing anything wrong or illegal, and after denying that she was, Hartley launched into an explanation of why kids want to get into porn in the first place: Poor sex education, which leaves kids ignorant of sex and leads to teen pregnancy and venereal disease. However, she said, at some point in their early lives, they will be interested in sex, and would be attracted to porn because, unlike in Hollywood movies, "Nobody dies at the end."
"We suppress sexual speech and sexual knowledge at our peril," she warned in a short speech that was well worth hearing and repeating. "It's important that we keep sexual speech legal, even if it makes us uncomfortable," she added.
The morning's final witness was plaintiff David Levingston, a 61-year-old former journalist who'd worked as a newspaper photographer since he was 16, and that since then, he'd done "pretty much everything it's possible to do with photography." He also said he preferred to use older models, and that his fine art nudes had been displayed internationally, and some were part of the Kinsey Institute's collection.
Levingston had also published a book, The Figure In Nature, with photos of mature women in rural settings like parks, canyons and deserts, though when asked about its artistic message, he replied, "I don't know. I just like to make beautiful photographs."
But, he said, his ability to work changed when the 2257 law changed in 2009 to include "lascivious exhibition of the genitals," and 2257A was added, forcing recordkeeping even for simulated sex. He pulled some photos from his website for fear that they were "lascivious," and has avoided publishing some nudes because he wants to avoid having to keep 2257 records on them. He also said he doesn't really understand how to maintain records the way 2257 prescribes, nor does he want to be the subject of warrantless FBI searches, and due to his schedule, he cannot be at his office 20 hours per week waiting for an inspection. He also said he was unsure how to label images properly to comply with 2257, that he didn't want to go to the expense of hiring a third party to keep the records for him—and he was scared of prison if that recordkeeper screwed up.
Levingston also described a project that he had shelved because of 2257 concerns: A photographic study of current and former prostitutes and their work. When questioned later about the project by Bladuell, Levingston added that he was afraid to take photos of the prostitutes for fear the shots might violate 2257A and that he would be unable to protect the identities of his subjects due to the recordkeeping requirements. However, he did admit that he already keeps photo IDs and model releases for his models.
Questioned further about his other photo projects, Bladuell brought out that despite his preference for older women, he has shot 19-year-olds, and possibly even some 18-year-olds—and that while he can't tell someone's age just by looking at them, "I can say whether they're adults," and that the way to make sure he's not shooting a 17-year-old is to look at her ID.
Judge Baylson then took his lunch break, and when court resumed later this afternoon, no testimony was taken. Instead, the attorneys argued over which sections of former FBI agent Charles Joyner's deposition could be introduced into evidence—a decision the judge said he would make sometime Thursday.
But Judge Baylson's parting words of the afternoon were a "strong recommendation" that Murray consult with his clients to determine which sections of the 2257/2257A regulations they felt were most onerous and that they could not abide, and he also suggested that the defense team consult with their superiors at the Department of Justice to see if changes could be made to the regulations that would prevent the current lawsuit from proceeding further.
So cheer up, adult video fans: With the courtroom scheduled to be dark tomorrow, Friday might bring some very good news indeed—but if it doesn't, it will bring the testimony of the final plaintiff, Barbara Nitke, and of the defense's main expert, virulent anti-porn activist Gail Dines.