Expert Witnesses and Arguments Define Final Day of 2257 Trial

PHILADELPHIA, Pa.—The final day of the trial of Free Speech Coalition, et al v. Holder, where plaintiffs seek to strike down the federal recordkeeping and labeling law, 18 U.S.C. §2257 and 2257A, was also its most fast-moving, with two expert witnesses having been heard in the course of about three hours (including a recess), and Judge Michael M. Baylson limiting closing arguments from each side to 45 minutes each—and at that, plaintiffs' attorney J. Michael Murray didn't even get to use the four minutes he'd reserved for rebuttal of the government's points.

The day began at about 9:15 with the government's expert on youthful-looking performers, Dr. Francis Biro, director of adolescent medicine at Cincinnati Children's Hospital Medical Center, where he's been a professor for 14 years—and in fact was a government witness in an earlier 2257 case, Connection Distributing v. Reno, which Murray had tried in 1996 and won after several remands, but was reversed on appeal.

Biro testified about "pubertal maturation"—the age(s) at which children metamorphose into adults, developing pubic hair and, in females, breasts and wider hips, and in males, better defined musculature. He referred several times to the "Tanner scale," a series of drawings and descriptions that trace the development of the onset of puberty, and is often used in child pornography cases to assess the ages of the children appearing therein. Biro said he had been part of a reworking of part of the scale, when he discovered that some adolescents would develop breasts and then, for some reason, those breasts would shrink to an earlier size, only to redevelop later. Biro himself is also involved in clinical work, seeing patients regularly, though on cross-examination, Murray brought out that he only spends about 40 percent of his time currently seeing patients.

Biro mainly testified about the differences between how a young person can look versus their actual age, and Biro said that it was difficult if not impossible to assess a person's actual age simply by looking; that in young teens, there would be a margin of error of one to three years in assessing age by sight, and that that margin would expand to two to five years for older teens, 20-somethings—and even a greater disparity with older persons. He also said that some of the characteristics he would look at in attempting to determine age would be a person's height, body fat, relationship of hip size to waist for girls, and muscle mass for boys. He also said it's easier to guess a person's age if one can see them developing over time.

The government, through attorney Hector Bladuell, seemed most interested in whether it would be possible for the lay person to say with confidence that a particular performer in an adult video was a minor or an adult, and Biro stated that it would not, especially if the person had taken steps, such as using makeup or dressing "provocatively," to appear either older or younger. He also said that physical maturity did not always track with emotional maturity, and that he had seen at least one girl who had physically matured prematurely at 12, but that her emotional maturity, including the ability to make adult choices regarding her sexual behavior, lagged behind, as he said would be the case with any prematurely mature individual. (He discussed all of this using scientific and medical terminology, to the point where the judge had to ask him a couple of times what he was talking about.)

Bladuell then had Biro look at several images pulled from adult websites, adult DVDs, and books published by at least two of the plaintiffs, and asked whether he could tell with reasonable certainty what age the people depicted were. Biro had seen the images before, and had even composed a chart that divided the images into three groups: those who looked as though they could be under 18; those who definitely looked older; and those where there was not enough information in the image for him to make an assessment. In discussing his assessments, he often referred to breast size, waist-to-hip ratio, body fat, skin tone and facial characteristics, in several cases mentioning the person's chin size. He also testified that it was particularly difficult to assess age by looking at isolated body parts like vaginas or penises.

At one point, the judge interrupted Biro's testimony to ask if he were familiar with digital photography, and whether he thought digital images could be manipulated to make the subject seem older or younger, but Biro had no opinion.

Bladuell also asked whether Biro thought that the requirement in 2257 that producers keep copies of performers'/models' photos was a good idea in helping to determine age, notably for those who appeared to be 25 years old or younger, and Judge Baylson limited the question to whether he thought so from a medical point of view, to which Biro said yes, he thought it was a good idea.

On cross-examination, Murray brought that "pubertal maturation" was not an exact science and should not be used to determine someone's age, and had a conversation with the witness regarding how useful the Tanner scale was—even quoting from a letter that Tanner himself had sent to the renown, peer-reviewed Journal of Pediatrics in 1998 saying that it was "illegitimate" to attempt to assess a person's age by using his scale; that the scale was not designed to estimate "chronological age" from the indicators he had noted.

Biro also agreed that it was unlikely that any child less than 12 years old could be mistaken for an adult, and that few 13- or 14-year-olds would, and that as age increases, the margin of error of such age estimates would grow. Murray also asked him to look around the courtroom and see if he thought any of the roughly 20 people present looked as though they might possibly be underage, and the witness identified plaintiff co-counsel Lori Baumgartner's 24-year-old daughter as the one person who might.

Murray also questioned him about his testimony in the Connection case, where the witness had examined eight "swinger" magazines and testified that the vast majority looked over 21.

Returning to the case at hand, Biro testified that he didn't know how the government had selected the images it had asked Biro to assess the ages of, and that he was not an expert on the number of sexually explicit images that exist, nor the number currently being produced.

On redirect exam, Bladuell questioned Biro particularly about the Tanner scale: how it had been developed—Tanner studied adolescents in a London orphanage over a number of years, and documented their physical changes over time, noting common growth characteristics—and whether he had discussed his alterations to the Tanner scale with Dr. Tanner while the gentleman was still alive, and Biro testified that he had. Biro also testified that he thought lay people would have much more difficulty determining a person's age by looking than would an expert in pediatrics, and that he thought lay people would think more of the younger images might be underage. He readily agreed that a driver's license would be a "more valid" indicator of the person's age than a visual inspection.

On recross, Murray brought out that Biro had no idea regarding the expertise of adult film directors in determining a performer's age, nor of the expertise of fine art photographers (such as several of the plaintiffs) in doing the same.

The next witness was Dr. Philip Stark, a professor of statistics and chairman of that department at the University of California at Berkeley—and if Biro had proved somewhat difficult to understand, Stark was barely better.

Stark had been called by the government to rebut the results of the surveys taken by Drs. Michelle Drouin and Mark Zimmerman regarding the number of people who had used technological means such as cellphones, email, and social networks to send sexually explicit images to each other, to others, or to receive such images themselves. Stark took issue with both of the previous witnesses' reports, claiming that the participants in the surveys had not been chosen randomly but, in Drouin's case, had been volunteers from among the students in the department of psychology at her university, and in Zimmerman's case, had been recruited online. Stark spent the better part of an hour discussing the difference between a random sample, which he said was the superior method of surveying, and a "sample of convenience," as he described both Drouin's and Zimmerman's subjects. He said that samples of convenience (or in Zimmerman's case, "respondent-driven sampling," which he felt was equivalent to a sample of convenience) produced results which could not generally be extrapolated to larger populations because they had not been selected randomly, and he explained the difference between the two methods.

When Murray cross-examined the witness, however, he established that several national polling firms, including the Gallup and Harris Interactive Polls, often used-self-selected participants, and yet their results were widely held as informative. He also questioned whether one would even need a survey to determine, for instance, that in the 2016 presidential election, "millions of people" would vote Republican, to which Stark admitted that that was "common sense"—but not statistically valid. Stark also said he had no opinion as to whether sexting was an isolated or widespread phenomenon.

Murray drew Stark's attention to a Harris poll that had found that one in five American smartphone owners had sexted, and the majority of those who had done so were young adults in their 20s and early 30s. He presented some specific statistics for certain demographic groups, and while Stark could not challenge the figures, he felt they were not necessarily statistically valid. Murray pressed as to whether a sample of convenience could produce a "rough estimate" of the number of sexters in the population, and Stark agreed that it could—but that such an estimate would not be "quantitative."

There was also discussion regarding the validity of Drouin's and Zimmerman's results considering that the term "sexually suggestive," the term used in the poll questions, had not been defined, and could include simple cleavage or even kissing, but Stark could not comment on that.

Murray also brought out that Stark's expertise came at a price: $1,200 per hour.

After the testimony, Judge Baylson gave the attorneys a half-hour to prepare their closing arguments—an unusually short time—and limited the arguments to 45 minutes each—also very unusual in this type of case.

But both sides rose to the occasion, with Murray noting at the outset that "This case is a serious one involving serious First and Fourth Amendment issues," and that, "If the Court strikes down 2257 and 2257A ... Congress can fix it" with revised legislation that dealt with the Court's concerns.

Murray spent some time noting the incredible scope of the material covered by the 2257 regulations, from explicit images to masturbation to BDSM images to "lascivious exhibition of the genitals," when he noted that the first court to consider the legality of 2257, in the American Library Association case back in the late 1980s, had said that "any frontal nude image in an erotic pose" would be included, and that considering the conviction of the defendant in the case of U.S. v. Knox, about a person who videotaped clothed children with the camera focusing on their genital area, nudity wasn't even required for an image to fall under 2257. He noted that it was the same even for simulated sexual acts, and that again, the participants didn't need to be nude for the images to be covered by the law. He even quoted the statute to the effect that the only thing needed for an image to be covered was that it be produced with materials obtained through interstate commerce—for instance, merely using a camera ordered from another state could trigger the image's inclusion in 2257. He also noted that back in 1988, when 2257 was passed, legislators had no idea how far image-producing technology would expand—into the internet, into Facebook, into cellphones, into Twitter and Instagram—but that nonetheless, the statute covered all of those technologies.

Murray also talked about the statute's overbreadth, that it covered far more images of people who could never be mistaken for minors than those who could. He noted that even Dr. Gail Dines had estimated that just one-third of the images she had seen in her research had people who could arguably look underage—which meant that two-thirds couldn't. Dr. Daniel Linz had testified that even more—67 percent—could never be confused with minors, and that even Dr. Biro agreed that very young children couldn't be confused with adults.

Murray further noted that Linz had said that "tens and tens of millions" of people have sexted and emailed what he described as private sexually explicit content, and posted same on social media networks—he mentioned Facetime and Instaporn specifically—and that couples have shared intimate images of themselves with their partners via Skype and similar services.

At that point, Judge Baylson interrupted him to ask where Murray would draw the line regarding couples; could they be unmarried and committed, or even simply friends? Murray responded that it didn't matter; all of it was protected speech and all of it fell under 2257. The judge then asked, what if a husband and wife were to perform sexual acts for Vivid Entertainment; would that still be protected? Murray noted that if they performed for Vivid, it would transform that private speech to commercial speech, which was a different animal, but that the material would nonetheless be protected speech.

Murray noted that when the Third Circuit, which had remanded the current case to Judge Baylson, referred to "private" images, it meant images "shared privately by everyday citizens," but that the 2257 law would nonetheless apply to them and that those participants would also be required to keep and cross-reference records, put 2257 labels on the images, and be available 20 hours per week for FBI inspections. However, Murray noted that the vast majority of those who created such images had no idea that 2257 applied to them, that the law currently is "massively violated," and he wondered what the American people would do if they became aware of the fact that they were breaking the law just by sending explicit images.

Regarding the plaintiffs' Fourth Amendment claims, Murray drew the Court's attention to U.S. v. Jones, a California case where police had secretly put a GPS tracker on a man's car, and the Supreme Court ruled that such planting of the device had violated the defendant's right against unwarranted search and seizure. Murray compared that to the 28 inspections which the FBI had undertaken at adult businesses and in six cases, the business owners' homes. He noted that 2257 gave the FBI agents the power to enter businesses, to go to areas where the public was not permitted without invitation, to take photos of those areas and occupy them for hours at a time, all of which he said were privacy violations that in any other situation—even the so-called "administrative search exceptions" for what are described as "closely regulated industries like mines, junkyards and the like—would require a warrant based on probable cause. Murray even extended the claimed violations to third party recordkeepers, since their privacy rights were violated by the 2257 inspections as well. And as to the government's argument that such privacy claims were not "ripe," Murray noted that although the inspections had stopped in 2007 and the inspection unit disbanded, it could be restarted at any time and the same violations would exist.

Finally, Murray asked that Judge Baylson declare that both the statute and the regulations attendant to it were unconstitutional under the First and Fourth Amendments.

The government's closing was handled by Kathryn Wyer, and compared to Murray's argument, was much less focused. In fact, Wyer ignored most of the points Murray had made, instead arguing that "no one disputes the fact" that sexually explicit material is constitutionally protected, that the 2257 regulations affect actual human beings, and that the purpose of 2257 is to protect children. She claimed that there were only limited issues before the court and that, for instance, the plaintiffs' argument that the 2257 statute and regulations were not "narrowly tailored" to satisfy the requirements of the "intermediate scrutiny" that the Third Circuit said was the highest level of scrutiny that the law was required to meet could only apply to plaintiffs' First Amendment claims (the overbreadth and vagueness arguments) and not to its Fourth Amendment privacy violation claims.

Wyer divided the 15 plaintiffs into three groups: adult industry plaintiffs (Free Speech Coalition, Sinclair Institute, Channel 1 Releasing, Dave Cummings, Nina Hartley, Tom Hymes), fine art photography plaintiffs (American Society of Media Photographers [ASMP], David Steinberg, Barbara Nitke, Barbara Alper, David Levingston, Michael Barone) and "educational" plaintiffs (Betty Dodson, Carlin Ross, Carol Queen). She argued that the burdens of 2257 recordkeeping should be considered simply a cost of doing business for the industry plaintiffs, and that while the Third Circuit had asked the trial court to look into the possibility of finding an exemption to the law for those who produce content only with "obvious adults," that none of the industry plaintiffs fit that criterion; all used younger-looking performers frequently—in the case of Dave Cummings, 37 percent of the time, and in the case of Nina Hartley, 24 percent.

Wyer gave special attention to Tom Hymes, who testified that his speech had been chilled because he had considered adding explicit content to his website, but avoided doing so because of 2257 concerns. Wyer charged that Hymes had a full-time job at AVN and never really intended to carry through with his plans to expand his site's content—an argument which seemed also to implicate whether Hymes had standing to participate in the lawsuit in the first place.

Regarding the photographer plaintiffs, Wyer argued that the 400 shooters who shot explicit content, which ASMP executive director Eugene Mopsik had identified from his survey of over 7,000 ASMP members, was not a large percentage, and moreover, she was unsure whether the images those 400 shot would even be covered by 2257—and that in any case, many of those photographers used their work in commercial enterprises like magazines and books, and so would be required to keep 2257 records because their images were part of the stream of commerce. She also claimed that the individual plaintiff photographers, who had testified that the majority of subjects they shot were obviously adults, sometimes did shoot younger models, and therefore should be covered by the law.

"Twenty-five is not any kind of magic number as to who is considered mature," she argued, attempting to counter plaintiffs' argument that no one over 25 years old would likely be confused with a minor, especially with the use of make-up to change the models' appearance.

Generally speaking, she claimed that roughly one-third to one-half of the photographers' models were under 25 and could be seen as minors by some—and that none of the photographers had said that they would only shoot older-looking models.

Turning to the "educational" plaintiffs, Wyer argued that what they all wanted was to be able to use anonymous subjects—in Ross and Dodson's case, for their online "Genital Art Gallery," and in Queen's case, as participants in webcasts of the annual Masturbate-a-thons—and that the Third Circuit had said that such anonymity would be a danger to minors who might possibly be included in the webcasts or art gallery.

When Judge Baylson interrupted to ask how Wyer would deal with the privacy concerns of sexting or privately webcasting couples, she noted that none of them were plaintiffs in the case for an as-applied challenge, and when the judge noted that Alper had brought just such a challenge, Wyer stated that if she or any of them were so affected in the future, they could bring their own cases to deal with it at that time.

Wyer also argued that FBI Special Agent Stephen Lawrence had testified that there was no evidence that any truly private conduct, such as a couple taking explicit photos or videos of themselves in their own home, had ever been targeted by the FBI inspectors, so there was no evidence that any of their speech had been chilled—and in any case, they were not plaintiffs in the case.

Wyer further made the absurd claim that without 2257, the adult industry would not be checking performers' IDs to make sure they were adults—ignoring the existence of child pornography laws that would send such producers to prison for years for shooting minors.

Regarding the labeling of images with 2257 compliance labels, Wyer claimed that plaintiffs had said that such labels had to be attached as soon as a photo was snapped or a video camera turned on—a clear absurdity—and that such labels could be attached once the photo or video was put into the stream of commerce.

Wyer continually argued that much of the plaintiffs' conduct was within the "plain, legitimate sweep" of the regulations, and that the demand for younger performers, as admitted by both Dines and Linz, made it necessary to continue to force producers to check and keep identification documents, and that putting a cut-off age of, say, 25, above which such documents need not be kept, was inviting trouble in the form of disputes between inspectors and producers over who looked young enough to need an ID document checked.

When Judge Baylson again questioned Wyer about what should be done regarding private sexually explicit photos and videos posted to social networking sites and the like, Wyer repeated that such problems should be the subject of later as-applied challenges, but that they had no place in this trial.

Finally, Wyer argued that the explosive growth of sexually explicit images on websites, on DVDs, in books and anywhere else they appeared required that 2257 continue to be the law of the land, and that while inspection procedures could change if the inspection team were reconstituted—she particularly noted that FBI agents had been "completely accommodating" when some producers they'd inspected had been unavailable when the FBI first showed up at their addresses—2257 should not be struck down.

After Wyer was done, Judge Baylson reminded both sides that there would be a rapid post-trial briefing schedule, with both parties filing simultaneous post-trial briefs which would concentrate on the evidence-supported facts of the case rather than the law; that the government has the burden of proving that the law is narrowly-tailored enough to satisfy the plaintiffs' overbreadth/vagueness claims, while the plaintiffs would have to deal with the Fourth Amendment privacy issues; and that reply briefs to the post-trial briefs would be limited to 15 pages each, this time with the government attempting to rebut the privacy issues and the plaintiffs needing to rebut the narrow-tailoring issues. He set a deadline for the post-trial briefs for June 28, and for the reply briefs of July 5, and promised a decision by the end of that month.