DOJ Presents Its 1st Expert Witness in 2257 Trial

PHILADELPHIA, PA—As the case of Free Speech Coalition v. Holder began its fourth day of testimony, the defense team from the U.S. Department of Justice's Civil Division called its first witness, Dr. Gail Dines, to the witness stand in an attempt to show that the federal recordkeeping and labeling laws, 18 U.S.C. §2257 and 2257A, are necessary to prevent minors from appearing in sexually explicit depictions.

Assistant U.S. Attorney Joseph Schwartz began the questioning, asking Dines to tell about her education and her current work. Having graduated from college with a Bachelor of Science and a Ph.D., Dines has been a full professor in the American Studies Department at Wheelock College, near Boston, since 2000—though she noted that for the past 25 years, "all of my academic career has been devoted to the study of porn."

That study included interviewing adult industry personnel and following industry developments in the industry press, notably AVN and XBIZ, as well as articles about the industry in non-industry publications. She also testified that she has "contacts" within the adult industry who also provide her with information—though when asked by plaintiffs' attorney J. Michael Murray to identify who those contacts were, Dines refused, saying that the contacts were "scared to come forward," and that three of the five she claimed to consult regularly had left the country within the past two years because of such fears.

The author of two books and numerous articles on pornography, Dines described herself as a qualitative sociologist—one who deals in imagery rather than hard-number data—using "methodological triangulation" to determine whether some observed trends in the use of pornography among American citizens are valid. That is, she said she would figure out, based on her studies, what categories of adult material exist, and then see if her data supported the importance of some of the categories. These studies form the background for the 25 to 50 academic lectures she gives every year to healthcare professionals, attorneys and even foreign dignitaries, such as Iceland's Minister of the Interior, who is considering a ban on internet porn in his country.

Indeed, Dines testified that most porn today is consumed via the internet, and that the future of printed explicit material is "almost dead." She also testified that from the days of Playboy magazine's inception to now, pornography has become "much more cruel," and that 90 percent of the sex scenes in the top-selling DVDs feature violence and non-consensual acts.

Focusing on internet porn, Schwartz asked Dines what that was like. Dines responded that those seeking sexually explicit material would search via Google or another search engine, which would lead them to the numerous tube sites which offer the material—sites which she described as "the gateway into the porn industry." Though she opined that the home pages of such sites as PornHub, XNXX and RedTube were "chaotic," she identified 61 specific categories of content that PornHub offers on its home page. (There was also a side discussion of whether the "amateur" porn offered was really by amateurs, with Dines of the opinion that if the footage was released by a known porn producer, it couldn't be truly amateur.)

Dines also testified that the Justice Department (DOJ) had asked her to map the content on the various internet adult sites, starting with the free ones, the creation of which she described as a "revolution in the porn industry," and to collect data on the prevalence of the word "teen" in those sites' offerings.

While admitting that a lot of content on the free tube sites is pirated, other content is clearly owned and used by the owners to "tease" viewers into converting to pay sites, Dines opined. She said that very few sited create their own content, preferring to distribute others' material, and she stated that Manwin "controls most distribution" on the tubes, and that in fact, distribution is their main business.

She also claimed that the adult industry press mainly talks about how production companies are losing money in the current economy, and wondered how it would be possible to verify the ages of performers for companies that went out of business. But Judge Michael M. Baylson expressed doubts that there was much bankruptcy in the industry. According to him, all companies need to make content is a location, performers and a camera operator, so why does Dines say they're losing money? Her only response was that the industry articles say they are, as do her contacts within the industry. She also began to describe production companies as "sweatshops," but Judge Baylson cut her off, saying that "sweatshops" was not a helpful metaphor.

Dines also claimed that "very few distributors have set foot on a porn set," that they "often never meet the producer," and therefore were ignorant regarding how ages of performers are verified. She put Manwin in this category. But when the judge asked whether production companies sent along 2257 records when selling a movie or scene to a website, Dines equivocated, claiming that some tube site operators have said they can't get such records from producers.

Dines then went into a long discussion of how "teen porn" performers differed from "young-looking performers," claiming that the "teens" are thinner with smaller breasts and often ponytails or pigtails—and no pubic hair. She also said that the descriptions of "teen porn" scenes tended to use terms like "this little cutie," "innocent" and other terms conveying youth.

Dines said she went on the three major free sites—PornHub, XNXX and RedTube—and searched for various terms with "teen" in them, and using Web Tracker and Google Trends, found that besides "MILF," "teen" is the most searched term on those sites, and that, for instance, PornHub had 5.8 million pages devoted to "teens" in one form or another. She also said that statistics found on said that the most searched terms are "MILF," "teen" and "college"—half a million such searches per day, and far and away more searches than other porn-related terms like "anal," "Asian" or "gay."

When it came Murray's turn to cross examine, he delved right into the subjects Schwartz had avoided, asking Dines outright if she were "anti-porn," which she agreed she was, and about her website describing her as an "anti-porn activist," which she agreed was accurate, especially since she had been instrumental in forming the 2010 conference at Wheelock titled "Stop Porn Culture," which is also the name of her site. However, Dines claimed the organization was educational rather than activist. Murray also questioned Dines about comments she had made on her blog that porn was full of "misogynistic and racist images," a product of our "pornified culture." He also questioned her about some articles she had written, including one for the Houston Chronicle where she described Hugh Hefner as "Society's Most Influential Pimp." He also noted that she had lost a debate at Cambridge University in 2011, and that critics had described her latest book, Pornland, as "poorly researched."

For her part, Dines denied that Pornland was "anti-porn," preferring to describe it as "critical" of porn, and that most of her anti-porn articles were in fact "critical analyses" of the issue.

Murray and Dines then got into a discussion of the differences between qualitative and quantitative sociology, noting that the latter specialty deals with hard data, and that Dines had never held herself out as a quantitative sociologist—and had also never been qualified as a "porn expert" by any court.

Murray also challenged Dines' statement that "teen porn accounts for a significant portion of online pornography," noting that even using Dines' statistics, 67 to 75 percent of all porn found online has no teens in it. Similarly, when Dines pointed out that PornMD had found that in 13 states, "teen" was the most searched porn term, Murray pointed out that that meant in 37 states, it was not.

Murray also asked her to estimate what percentage of adult porn features players that looked young enough to possibly be minors, to which Dines responded, "One-third."

After the luncheon recess, Murray tried to pin Dines down regarding her statement that Manwin was primarily a distributor rather than producer of porn. Dines back-pedaled a bit, saying that she'd meant that only the upper management of the company would not have been familiar with how producers verify performers' ages—and apparently did not know the extent to which Manwin is involved in production. For instance, she knew about Brazzers, but apparently not about Manwin's ownership of Digital Playground and other production studios.

There was also a long discussion about whether it would be possible for a man and woman to video themselves having sex and post that video to one of the tube sites without compensation. However, Dines was adamant that if they did so—and she claimed they'd need a membership to the site in order to complete the posting—they would still receive money depending on how many visitors to the site watched their video. She made it clear that all porn posted on the web makes money for someone, though she was unclear whether the sites required that all clip submitters accompany those clips with 2257 identification documents.

When Murray's examination was complete, Judge Baylson asked Dines some questions for clarification, since he stated that, "She has not been consistent throughout this in my opinion." Some further testimony established that Dines had no expertise in fine-art photography, sexting or social networking sites.

The day's final witness was the final plaintiff, Barbara Nitke, who'd been a photographer since 1980, had been a still photographer on numerous porn sets in the New York area in the 1980s and early '90s, had become intimate with several BDSM clubs in the city and photographed some of their attendees, and had published two books of photos and text, Kiss of Fire and American Ecstasy.

Upon questioning by Murray, Nitke described how she'd seen adult producers ask performers for photo IDs to make sure they were adults, even before 2257 required that they do so, and when questioned about whether any of the producers she knew would want to use anyone under 18 in their movies, Nitke responded, "They would have been appalled" at the suggestion, and would have thought that such a suggestion was "immoral." Murray then took Nitke slowly through her many photographic "projects," noting that Kiss of Fire had been mainly devoted to "a romantic view of sadomasochism, that another project called "Illuminata" was also devoted to S/M but with more religious and spiritual themes, that American Ecstasy contained photos from her early days on porn sets, all shot before 2257 kicked into force in July, 1995, and that her latest project, "Smooth Hotel," was intended to be a statement about "light bondage and fashion art."

Nitke also described how she obtained and kept 2257 records, using a "compliance form" for stage names, nicknames and the like, and filing it all in a "banker's box" which she kept in her closet, though she did scan the IDs into her computer. She once again assured Murray that in doing her current project with the BDSM community, neither they nor she wanted to involve minors in sexually explicit conduct or photographs.

Nitke noted that rather than do American Ecstasy, she had wanted to do a book called Voyeur, which would have included photos from both her early days and more modern work, but was concerned that since she didn't have any photo IDs from the early shots, she could be in trouble, 2257-wise, if she included those photos in a book printed today. She also detailed some of her troubles in understanding and applying 2257, calling it very time-consuming and complicated, especially the cross-referencing, plus she disliked having to re-do the cross-referencing every time she changed the content of her website. She also noted that many of the BDSM couples she had photographed in the privacy of their own homes had trusted her not to reveal their identities, and she felt that getting 2257 IDs from them would feel like a violation of that trust. She also said that she had no idea how to affix a 2257 compliance label to the thousands of digital photographs she had taken over the years.

When it came time to cross-examine her, DOJ attorney Kathryn Wyer brought up the fact that according to a summary sheet Nitke had provided of her photo shoots for the past several years, a number of her models had ages ranging from 21 to 26 (implying that they might be mistaken for minors), and called Nitke's attention to one photo featuring a person in a rubber mask, which Nitke agreed would make it difficult to identify that person.

Wyer also questioned Nitke on some of her 2257 practices, learning that she didn't know that her files could be kept entirely digitally, and thought that inspectors could show up at her home office at any time of the day or night.

Judge Baylson then took over the questioning, asking Nitke whether she used electronic documents to prepare her taxes (she does) and whether she felt that 2257 recordkeeping was any more complicated than amassing figures for her yearly tax returns—to which she replied that it definitely was.

On redirect, Murray asked Nitke if she was ever unclear on whether some of her BDSM photos required 2257 recordkeeping. Nitke responded that she was unclear what the statute meant by "sadomasochistic abuse," and so was unable to classify some of her photos as needing or not needing 2257 records—but that she collected the IDs anyway, "just in case." But Nitke assured Wyer that she would check her models' ages even absent the 2257 requirements.

With that, the witness was excused, and after the attorneys and Judge Baylson dealt with which sections of FBI Special Agent Chuck Joyner's deposition would be allowed to be used as evidence in the case, the judge adjourned the proceedings until Tuesday morning, when the defense will present more of its expert witnesses.

Check back with for further developments in this important and far-reaching lawsuit.