PHILADELPHIA, Pa.—Events moved fast during the second day of testimony in the trial which will decide the constitutionality of the federal recordkeeping and labeling laws, 18 U.S.C. §2257/2257A.
But the day didn't begin very well for federal prosecutor Hector Bladuell, who continued his cross-examination of Sinclair Institute office manager Dian Wilson. He began by asking what percentage of younger performers had appeared in Sinclair's hardcore sex ed videos, and Wilson estimated that about 10 percent were between 18 and 20, but that included those who only posed for box cover photos but didn't appear in the videos themselves. She also said that most performers were over 30.
Apparently, Wilson's figures didn't jibe precisely with the figures she'd provided in her Answers to Interrogatories on Sinclair's behalf, but when Bladuell began to ask her to confirm those previous figures, Judge Michael M. Baylson decided he'd heard enough.
"It's absurd," the judge interjected. "If that's the only contradiction you have, we're gonna be here for a month!"
Bladuell decided to move on, and questioned Wilson about Sinclair's websites that sold both the company's own videos as well as those from companies like Wicked Pictures, Pulse, Platinum Media and Sinclair's sister company, Adam & Eve. Bladuell had apparently done a search of the sites, looking for videos that fit the search word "young," and he had Wilson identify reproductions of those search results ... but when he started to ask her if she were familiar with the titles on the pages, and she responded negatively to several of them, Judge Baylson cut him off again and suggested that he simply ask if she were familiar with certain of the movies.
However, Bladuell instead pointed out several movies that could be found for sale on the site, and asked about the language used to describe the contents of the movies, all of which used terms like "young," "18-plus" and "college freshman," and some had titles with words like "My Daughter's Boyfriend," "Petite Coeds" and "Young Beauties."
Again, Judge Baylson seemed in the mood to summarize, commenting, "It's obvious to me that some performers are adults" and that others appear young, and that the exhibits showed that, yes, young-looking people are in the videos. (One of the government's goals appears to be that since young-looking people are used in adult videos, 2257 should be upheld even though every title's description assured that the performers were all over 18.)
Bladuell then turned his attention to how Sinclair selects titles to sell on its sites—they have the movies reviewed by outside experts, who recommend yea or nay—as well as how they obtain the 2257 identification documents from outside companies. Wilson testified that sometimes she is given access to other producers' FTP sites to download the info, which she noted sometimes takes a long time; other times, the documents are sent on disk or in hard copy form. Bladuell also produced some sales figures and asked Wilson to verify them, but she was unable to do so.
After cross examination was completed, Judge Baylson himself asked some questions, particularly about Wilson's estimate of how much 2257 compliance costs the company, with Wilson reaffirming that the previously cited figure of about $70,000 per year is correct. But the judge questioned whether it costs any more to index a sex scene is if that same scene is used in multiple movies, Wilson said it did, because for each movie new document identification numbers must be created in order to track the 2257 compliance of each movie in which the scene appears. He also questioned Wilson's statement that she needs a set of compliance documents on paper as well as in the computer, but she responded that she finds it difficult to put signatures on a computer screen—and when asked about electronic signatures, said she didn't trust them.
The next witness was another plaintiff, sexologist Dr. Carol Queen, who described her various jobs with the Good Vibrations chain, her directorship of the Center for Sex & Culture (CSC), her frequent lectures at colleges and elsewhere, and her curatorship of the Vibrator Museum. She also noted that she'd written, edited and/or contributed to several scholarly works, had performed in sex education films—and in her spare time, created sexually explicit collages which she has exhibited at art galleries.
Much of her testimony, however, focused on the "masturbate-a-thons" which CSC has run for most of the past two decades, and their attempts to do live webcasts of some of those events. She noted that volunteers check to see that no one under 18 is admitted, and although CSC had kept copies of the live-streaming participants' IDs, they had not shown or in any way attached a 2257 compliance label to the live web feeds—which was largely why they had not done such webcasts for the past three years. Though she stated that most masturbate-a-thon participants were in their 30s and 40s, with only about 10-12 percent under 25, the fact that some participants possibly looked young enough to be minors caused her great concern regarding 2257 compliance. She also said she did not know that 2257 required that she record each masturbate-a-thon webcast and keep such recording with the identification documents.
Queen testified that she had similar problem with her collages, since their contents included photos of genitals, and she often could not identify whose genitals they were. So while she has exhibited the collages in gallery showings, she has not been able to publish them due to her inability to match 2257 identification documents to the images.
Finally, she noted that although CSC had had an erotic photography club that met on its premises, she was concerned about the 2257 implications of photographers shooting nudes or sex acts during club meetings, and also that 2257 was the reason that those photos were never collected into a calendar that CSC would publish.
On cross-examination, DOJ attorney James Schwartz attempted to draw out more details of each 2257 situation, and Queen admitted that sexual intercourse was forbidden at the masturbate-a-thons—but several minutes of Schwartz's examination was taken up by having Queen identify photos that had been taken at a recent masturbate-a-thon, some of which were published in SF Weekly. He also drew out that the photography club is currently inactive, and learned that CSC's 2257 compliance documents for videos it's produced occupied just one drawer of one filing cabinet.
After Schwartz was done, Judge Baylson asked several questions, some of which involved Queen's knowledge of sexting—she admitted she was aware that some under-18s were indeed sexting—and others about state laws prohibiting minors from taking part in activities like masturbate-a-thons and posing for the photography club. She also agreed when the judge asked whether child porn should be illegal, though she noted that some thought the age of consent should be 16 rather than 18.
On redirect examination, however, she told plaintiffs' attorney J. Michael Murray that yes, adults sext as well, and that she was aware that each of those sexts should have been accompanied by a 2257 label "prominently displayed" and that the sender should obtain, keep and index the photo IDs of the subjects of the sexted images. She also said she knows of no one who has complied with those requirements.
If they knew about 2257, would that chill the sexters' speech? Murray asked. Queen responded that people think of their sexts as private communications, but that it would concern them.
Next on the witness stand was photographic journalist David Steinberg, author of several erotic photo collections including Erotic By Nature, and the U.S. photo representative for Norwegian magazine Cupido, which publishes "fine art sexual photographs." He testified that he had been in discussions with Cupido's editors about starting an American version of the magazine using some content from the European versions, but scrapped the idea when he realized that he would be unable to obtain 2257 ID documents from some of the Euro models. There was also some discussion of whether the age of consent was lower in Europe than in the U.S., but Steinberg assured Judge Baylson that no minors would have appeared in that U.S. edition.
Murray then got Steinberg to talk more about his career in erotic photography, about where his photos had appeared, and that he specializes in "uncommon sexuality," choosing subjects that often don't fit societal norms for attractiveness. He also noted that his office is in his home, and that he keeps no regular business hours (which would make it difficult to schedule 2257 inspections). He also expressed concern that some of his photos might be construed as "lascivious" and therefore trigger 2257 ID, recordkeeping and labeling requirements. He specifically noted the difficulty in attaching a 2257 label to a fine art photographic print, since he believed such a label would cover about a third of the "photographic space."
Steinberg also identified a spreadsheet he had created showing all of his erotic photographic shoots from 1999 to 2012, and that out of 260 subjects, 229 were over 25 years old. On cross-examination by Schwartz, he noted that just two were 19.
After the luncheon recess, Schwartz also had Steinberg go through a number of photos from Erotic By Nature to attempt to identify exactly how old the subjects were just by looking at them, but he was unable to do so.
Murray next called attorney-turned-sex-educator Carlin Ross to the stand. Ross testified that for the past several years, her main job since 2004 has been to assist legendary 84-year-old sexual rights activist Betty Dodson with her website, dodsonandross.com, which is dedicated to sexual rights and female sexual liberation. Ross testified that she also produces Dodson's films—titles include Self-Loving and Viva La Vulva—and video clips which are available for purchase on the site.
"Our philosophy is that masturbation is the basis of all human sexuality," Ross declared, noting that she and Dodson are crusaders against anti-sexual shame. She also noted that most of Dobson's videos and clips deal with "sexual consciousness-raising" among women, who often are so ashamed of their bodies that they are unable to enjoy sex. Some of the videos also trace Dobson's career as a sex-positive activist, but Ross stressed that none of them use performers who are under 18 years of age.
Murray noted that some of the questions asked in Dodson's online advice column had come from minors, but Ross responded that, "it's not illegal to answer a sex question" from a teenager, though she noted that most of the answers suggest putting off intercourse in favor of masturbation.
Ross also testified about the site's Genital Art Gallery, which she said was created in 1998 to answer the question she'd heard so often: "Am I normal?" The images are of penises and vaginas of many different shapes and sizes, al of which were submitted by fans of the website ... and though accompanied by a (required) essay about the submitter's sex life, none were accompanied by photo IDs or other 2257 requirements. She also noted that since she and Dodson had begun to require such IDs with submissions to the gallery, such submissions had dropped to nearly zero over the past few years. She also said that she'd had to remove a large number of images that Dodson had collected over the years because they too had no age-identification data.
On cross-examination, Ross admitted that it was impossible to tell a person's age just by looking at their genitals, but that the quality of the accompanying essays made it fairly easy to tell whether the submitter was young. Bladuell also got Ross to admit that many factors including race, breast implants, shaving and others could make it difficult to determine a submitter's age. Ross also said she was okay with laws limiting the sexual activities of minors, even though she was aware that many of them were having sex anyway.
The afternoon's star witness, however, had to be the irascible Betty Dodson herself. Under examination by Murray, Dodson disclosed that she'd been a fine artist in the early '70s until she turned her attention to sex education, since she herself had been deprived of it and wanted to spare others her fate. She said she had segued from art to sex by way of workshops and consciousness-raising groups that included hands-on training in masturbation techniques, about which Dodson had written several books and articles, including one international best-seller, Sex For One.
"Are you familiar with 2257?" asked Murray.
"Yeah, but I want to forget it," Dodson responded.
Asking what the purpose was of her Genital Art Gallery, Dodson said it was to "show women that they're not genitally deformed," adding, "We're stuck in the Dark Ages of human sexuality."
However, she said that when the law changed in 2009 to require that she have IDs for the genitals depicted, "the gallery was finished as far as I'm concerned."
On cross-examination, DOJ attorney Nathan Swinton asked whether the fact that Dodson had stopped producing videos was due to 2257. Dodson responded that video was a "dead medium," and that now she focused on her advice column on the site because "these kids out there are lost," sexually speaking. She later commented about the advice column, saying, "You should be reading this, everybody.” Dodson also agreed that some people have their labia removed, bleach their assholes and shave their pubic hair in an attempt to look younger—actions which Dodson deplored.
Photo-journalist Barbara Alper, another plaintiff, was the next witness, and Murray established that Alpers' photos had been published in such mainstream publications as The New York Times, Newsday the L.A. Times and several other venues, and that Alper's photography, though mainly documentary in nature—subjects ranged from portraits to food to gardening to fashion to the 1991 Gulf war—included many sexually explicit shots of lifestyles and sexual subcultures taken in nightclubs and similar locations both here and abroad. She admitted that she never checked the IDs of her subjects—she assumed they were adults because they were in nightclubs where bouncers checked IDs at the door—and in fact sometimes didn't even asked permission to shoot her subjects.
"I'm interested in sexual behavior," she stated, and described her type of photography as "artistic and documentarian."
She noted that more recently, she'd been shooting couples, both as individuals and while they made love, but noted that finding subjects has been more difficult recently because "nobody wants to give up their identity for government inspection." She noted that she didn't even check the IDs for the hardcore shots she's taken of herself and her husband.
She also said she wanted to shoot gay couples having anonymous sex on Fire Island, but because of the 2257 requirements that she obtain photo IDs, that plan had run aground. She also said she would be unable to publish a book of photos she'd taken in the 1980s and '90s because those subjects could no longer be found to obtain IDs from. However, she responded to one of Murray's questions that she had no interest in shooting minors: "I'm against it. It's the law and it's something I don't feel right about."
On cross, Swinton brought out that Alper had in fact sold a hardcore photo of herself and her husband to Cupido for $360 in 2010, and that Alper often did not know the age of the people she'd photographed in bars and clubs—though again, she stated that she assumed they were adults since minors were not admitted.
Judge Baylson then asked Alper some questions about her photo sessions with her husband, with the witness admitting that she hadn't intended to publish the shots because "it would make me uncomfortable" to have her home address revealed in the 2257 compliance documents that would have to accompany the photos. Even when Swinton noted that her home address appeared in a listing on Yelp, she made the distinction that the Yelp listing was for her photo-journalism work and had nothing to do with her hardcore side.
Swinton asked if Alper thought some minors would want to appear in sexually explicit photos, but she denied that they did, and stated that she saw no "social value" in photographing underage subjects. She also said that child pornography laws assured that professional photographers would not shoot minors.
The day's final witness was AVN Senior Editor Thomas Hymes, who was one of the creators of the website DailyBabylon.com, which featured commentary on the adult industry. However, when his two co-founders left the project, Hymes was left to run the site himself. Hymes said he considered adding hardcore images to the site, but avoided doing so because of the recordkeeping requirements of 2257.
"They're literally chilling my expression with 2257," he stated. He gave his reason as the fact that he works from home on the site, and wanted to avoid warrantless FBI searches of his house, plus due to his day job, he was unable to be available 20 hours per week for possible FBI records inspections.
On cross examination by government attorney Kathryn Wyer, Hymes admitted that several sections of the website had not been updated for two years or more, but he denied that he had abandoned the project.
At that point, Judge Baylson adjourned testimony for the day, with Hymes scheduled to resume the stand tomorrow—and the possible completion of the plaintiffs' case by the end of the day!
Check back with AVN.com tomorrow for more coverage of this important trial.