Plaintiffs' Final Expert Testifies on Seventh Day of 2257 Trial

PHILADELPHIA, PA—Judge Michael M. Baylson convened court a little later today as the trial of the federal recordkeeping and labeling law, 18 U.S.C. 2257 and 2257A, Free Speech Coalition, et al v. Holder, draws to a close. All that will remain after today are two government experts to be heard on Monday, as well as closing arguments for both sides.

Today's sole witness was Dr. Daniel Linz, a name well-familiar to the adult industry—as DOJ attorney Hector Bladuell brought out during cross-examination. Linz is currently a professor of Communications at UC-Santa Barbara, a position he's held for 20 years, and has a Ph.D. in Sociology and a Master's in Psychology, both of which have come in handy in the multiple studies he's done for the adult industry on adverse secondary effects.

Plaintiffs' attorney J. Michael Murray spent a good 15 minutes going over Linz's qualifications, the courses he's taught, the awards he's received, and the papers, articles and book chapters he's written or edited, stretching back over 30 years, that involved adult content; "a significant amount of research in that area," he testified, including research into the effects of porn viewing on various segments of society. To that end, Linz said he'd viewed millions of images—but upon questioning by Murray, assured the court that he'd never seen child porn distributed through regular commercial venues like adult book- and video stores or websites.

Murray specifically asked Linz if he'd made any estimates of the amount of child porn in existence versus the amount of adult porn, and the amount of porn featuring young-looking adults versus the older variety? Linz said that he had, having done some of that work at the request of plaintiff Free Speech Coalition.

Central to Linz's testimony, however, was his Google searches for various porn-related terms, such as "MILF," which delivered 454 million results, and "teen pron"—a common mistyping of "porn" because, as Linz explained to the judge, Google filters out searches for "teen porn" but "pron" is usually in such sites' metatags—which delivered 28.6 million results, while "child pron" similarly delivered 3.09 million pages. Indeed, Linz found that the first result for "child pron" was the Wikipedia entry for "child porn," the next for a news story about a pedophile priest, and the third a story about a child porn bust.

Linz testified that he searched several other terms as well, with "kid pron" yielding about 2 million results; "teen porn" yielding 136 million; "porn, 18 years old" yielding just over 8 million results; "porno" yielding 808 million; "sex pics," 237 million; "porn, sex," 211 million; and the biggie, "porn," delivering a whopping 1.36 billion results. Linz then used those figures to determine the ratio of various porn-related results to the number of pages obtained by just searching for "porn," and reported those percentages later in his testimony.

Linz also said that he'd done a search for the latest research into child porn, looking at articles, FBI reports, the studies co-authored by government witness Janis Wolak, and even a 2010 Justice Department report to Congress regarding trading of child porn images over peer-to-peer (P2P) networks.

In fact, much of Linz's testimony revolved around the P2P networks, which he said now represent the most common method of disseminating child porn, often using specialized software like Nutella and Limewire to access the networks. He also explained how P2P sharing differed from simply going to a website and finding an image.

But one of Linz's most important points was his opinion, after reviewing all of the above material, that child porn accounted for only about one percent of all adult-oriented/sexually explicit material available on the Web, describing the amount of child porn available as "very insubstantial." He also said that the amount of commercial pornography on the Web is "a vast, vast universe of material."

Murray then asked if Linz could quantify the amount of porn featuring young-looking performers with that depicting actors who were obviously adults, and what sources he used in coming to that opinion. Linz said he used three main sources: His own experience of over 30 years in the field, research projects he had been involved with or read the results of, and the search results he used to calculate the ratios. He had originally concluded that the ratio of "teen pron" to all porn was just two percent, but he said that Bladuell had corrected him on the term that should have been used, and Linz now testified that the ratio of "teen porn" to all porn was about 10 percent. He also said that the ratio of porn featuring young-looking performers was "very small" compared to material featuring performers who were obviously adults.

Murray noted that a previous witness, government expert Dr. Gail Dines, had also done a search for "teen porn" and similar terms using words like "daughter" and "college," and had concluded that fully one-third of all porn featured young-looking performers. Linz disputed that figure, based on his own researches, but when Murray noted that that meant that fully two-thirds of all porn did not feature young-looking performers, Linz agreed that the figure was at least that high.

Murray then turned the subject to how privately-made, non-commercial porn is distributed nowadays, and Linz named several familiar methods: cell phone, regular phone, Facebook, Twitter, Instagram, Skype and email, as well as forums on the internet that featured prerecorded videos and/or live streaming. He noted that the latter category included sites like Adult FriendFinder, Horny Matches, Hookup, Amateur Match and many others, where "regular folk" often post sexually explicit images of themselves, looking for people with similar interests in the same or other parts of the country—or the world.

Murray then showed Linz photocopies of printouts from several of those websites, and asked if he could estimate how much of that privately-produced "amateur" material was out there and being exchanged using the technologies he'd cited earlier. Linz replied that tens of millions of such images, if not more, had been exchanged in that manner—and in answer to Murray's follow-up question, Linz stated that he'd never seen a 2257 compliance label on any of it.

Judge Baylson jumped in at that point to have Linz state that to his knowledge, yes, possession of child porn is a crime, and that he knew of no adult producers who wanted to use under-18 performers in their products. Linz also said that he was familiar with the requirements of 2257, particularly the part that required producers to keep photo ID documents on each of their performers, which he termed "a good idea in theory" though he had doubts about its practicality. Linz also admitted that the use of the word "teen" does attract fans of adult material.

When it came Bladuell's turn to examine the witness, he first spent several minutes going over cases in which Linz had previously testified or provided reports for the adult industry, mostly involving secondary effects cases in places like North Carolina and Illinois, and that some of that testimony and reportage had been done at the request of Murray or his firm. Bladuell also asked if Linz had been recognized as an expert in child porn by any court, but Murray objected, and it turned out that Linz had never before been called to testify in a child porn case.

Bladuell also brought out that Linz had never done any hands-on research on the ratio of porn with young-looking performers versus porn featuring obvious adults, though Linz said he had written several articles on the subject, and agreed that he had similarly not researched the number of adult performers who could be confused with minors, nor had he researched the extent to which people sexted or posted erotic fan fiction, nor had he attempted to quantify how much sexting is going on.

Such issues are important to the plaintiffs' arguments that 2257 is both under-inclusive, in that sexts and image and video posting on "contact sites" have no 2257 compliance labels attached to them, and over-inclusive because it targets porn performers who are obviously adults and would never be mistaken for children.

Bladuell brought out, however, that the research where words like "teen pron," "child pron," "teen, 18 years old" and even "porn" were typed into the Google search engine wasn't something Linz did on his own, but rather he had accepted the results of such searches that had been performed by Free Speech board chair Jeffrey Douglas, and had not attempted to verify Douglas's results.

Upon further questioning, Bladuell elicited testimony that searches for words and phrases like "child porn/pron," "teen porn/pron," "porn" and similar terms would not just bring up sites with sexually explicit images, but also would find books, academic papers, reports, articles and even blogs that referenced the search words but contained no hardcore images, and that Linz had no idea what percentage of the search results produced hardcore images versus simple discussions of the subject.

Changing topics, Bladuell asked whether a search for "porn" would bring up images of paintings by famous artists, but Linz didn't think it would—though he admitted it might find photos by Robert Mapplethorpe, the photographer whose work had been charged with obscenity in Ohio several years ago—and had the charges dismissed, thanks to the work of First Amendment attorney H. Louis Sirkin. However, that led Bladuell to ask whether Linz thought that a full frontal nude photo of a man or woman would be considered sexually explicit, but Linz said that would depend on the context in which the image was presented.

Bladuell then questioned Linz whether his use of the search term "child pron" rather than "child porn" was because using "child porn" could have adverse consequences, but Judge Baylson jumped in to note that Linz had previously said that Google would not search for "child porn," and Linz added that he would not like to enter that term because such research might be misconstrued.

"Have you ever had the FBI do a Google search for 'child porn'?" the judge asked Bladuell. The attorney admitted that he had not.

Bladuell then asked whether child porn producers or traders had an incentive not to metatag an image as "child porn" because such material was illegal, but Linz said such fans of the genre would more likely use peer-to-peer networks. When Bladuell pressed for an answer to his question, Linz said he was willing to assume that most people were interested in avoiding any brushes with the law. Judge Baylson clarified the answer by asking whether such people might use other terms that they knew would be familiar to child porn users, and Linz agreed.

Bladuell then asked Linz about some of the outside research he'd relied on in forming his opinions, and brought out that Linz had used a 1992 report by former FBI agent Kenneth Lanning in developing his opinion about how small the percentage of child porn is that finds its way into commercial productions, while Lanning had supplemented those findings in a 2010 update, which Linz said he wasn't aware of. However, Linz had high praise for the reports generated by government expert Janis Wolak, saying, "I rely on her very much. I think she's a good scientist." (Wolak had less kind words for Linz.)

The discussion then turned to the types of adult material found on some amateur sites, with Bladuell particularly referencing commercial site PornHub, where a researcher in Murray's office, William Livingston, had found just 6,974 images responding to the search term "MILF," 2,019 for "mature," but 16,800 for the term "teen"—nearly double the other two categories combined. Linz agreed that teen porn is "extremely popular."

Bladuell asked if private communication methods like sexting, email and social networking sites could be used to send child porn to others, which Linz agreed was possible, though he said Facebook screens for the material.

Linz also said that he didn't know what proportions of sexual images privately sent would be of acts covered by 2257 like sexual intercourse and masturbation, versus images simply of exposed breasts, cleavage or people kissing. However, Linz denied that people were making much money sending explicit images, though he admitted that that it was "possible, but rare."

Finally, Bladuell delved into the question of whether only 18- and 19-year-old performers could be confused for minors, or could adults as old as 25 also be so confused? Linz said he didn't think 25-year-olds were likely to be mistaken for minors, but Bladuell directed him to an article he'd written some time ago where he'd said that 25-year-olds could be perceived as younger.

After some brief redirect examination by Murray, which clarified some of Linz's answers to Bladuell's questions, Judge Baylson called a recess, after which he announced that he would review with the attorneys his impressions of the witnesses so far, and what parts of their testimony he thought were important, and what parts he would give little weight to—a practice that appears to be quite rare in federal civil trials, but which both sides agreed would be very helpful here.

The judge began by complimenting both teams of attorneys, saying they had been well-prepared and had given good presentations in court. He also described all the witnesses as honest, but that some gave testimony that deserved to be considered with greater weight than others.

The judge noted that the plaintiffs' complaint had provided a good roadmap to the issues, and that the lead plaintiff, Free Speech Coalition (FSC), had described itself well in both its filings and in board chair Jeffrey Douglas' testimony. Judge Baylson opined that Douglas had a lot of expertise in the adult industry, and also that the judge believed that the industry does want to be law-abiding and that it is sincere in its beliefs—a sincerity he expanded to include all of the plaintiffs' fact witnesses. He opined that those witnesses' testimony deserves great weight regarding their First Amendment concerns.

The judge also noted, almost as an aside, that sex acts in movies and literature and art have changed dramatically over the years, especially with the growth of the internet; that there are many aspects to sexual depictions (not the least of which being that the images make some people very uncomfortable), and that society's reaction to such images has become looser as such images have been seen more widely. As a result, he said, law enforcement's response to them has also changed, and while he believed that "obscenity" is a valid legal concept, he was aware that that too has changed over the years, with works like James Joyce's Ulysses having been banned as obscene well into the 1930s. He also said that he thinks society widely believes that "child porn is an evil practice," and that all agree it should be banned.

The judge said he would attach great weight to the personal views and activities of the plaintiffs regarding sex, and that most of the plaintiffs except Barbara Alper appeared to be involved in one way or other with the commercial porn industry, but that even if they didn't produce porn commercially themselves, like Betty Dodson and Carlin Ross, they certainly interacted with people who did.

Turning to the individual plaintiff witnesses, Judge Baylson noted that American Society of Media Photographers executive director Eugene Mopsik had lots of experience with photographers, and credited his testimony on model releases and the fact that he had surveyed his members to find that 400 out of 7,000 had shot explicit content. He also called Sinclair Institute's Dian Wilson a "very knowledgeable person," though he thought the educational value of her company's product was outweighed by its "erotic attraction," and he doubted her claim of it costing $75,000 per year to maintain the company's 2257 records, saying such costs were "not out of the ordinary" for a multi-million-dollar company. (He similarly discounted the costs Nina Hartley said she had incurred in keeping her 2257 records with a third party recordkeeper.) He also felt that even Sinclair's customers like to see youthful performers.

The judge also thought Dr. Carol Queen's testimony was very credible, and appeared to have sympathy for the fact that she was having trouble getting people to participate in her "masturbate-a-thons" because of their fear of possibly revealing their identities to government inspectors, saying such testimony deserved much weight.

The judge likewise had sympathy for plaintiff photographers David Steinberg, Barbara Alper, David Levingston and Barbara Nitke ("a very credible person"), though each had somewhat different choices of subject matter and different problems attendant to those choices, like revealing the addresses of their home offices on the compliance label. He also said he understood the problems faced by Dodson and Ross regarding their "genital art gallery," which they used to help people feel more comfortable about their bodies, but which they had been forced to remove from their website because of the 2257 requirements that they could not fulfill.

He further noted Tom Hymes' testimony that he would have posted hardcore images on his site if it hadn't been for the expense involved in recordkeeping, noting further Hymes' testimony that 2257 had therefore chilled his sexual speech.

Turning to the two FBI agents who had testified, Stephen Lawrence and Charles Joyner, the judge said he found them "credible" and "accurate," though he felt that their inspection procedures, and particularly the checklists prepared by the Office of General Counsel, were "nitpicking in a lot of respects," and that the inspection process itself was "most troublesome from a regulatory point of view," especially regarding the surprise warrantless entries into businesses for records inspections, when both agents had agreed on the record that it was unlikely that, if warned of an impending inspection, the adult companies would or even could use that time to create phony records, though he admitted they might put the records in better order—which the agents admitted that they'd give such companies a week after the inspection to accomplish anyway!

The judge was also concerned about the inspections that had taken place at private residences, noting that some photos had been taken that had nothing whatsoever to do with the inspections.

Judge Baylson then identified two areas of particular concern to him: 1) The "privately-made" videos of, say, a husband and wife filming themselves for their own later enjoyment, who might not know that they were supposed to keep 2257 records on themselves—and might easily run afoul of the law even further if they posted the videos on social networking sites; and 2) the widespread use of the word "teen" to describe 18- and 19-year-old performers, but which the judge felt was used to imply that they might be even younger.

"The use of the word 'teen' is to attract people interested in young performers," he said. "I think that is a very important fact that can't be ignored."

Regarding experts Drs. Michelle Drouin and Mark Zimmerman, the judge was interested in their testimony regarding the use of new technology to spread sexually explicit images, and that sexting is now "a very prevalent activity among younger people"—and of course, that none of those images has the required 2257 label. However, he said he was unsure how much weight he would give to that fact, though he said it definitely impacted plaintiffs' claims about the law not being narrowly tailored to accomplish the legitimate governmental purpose. However, the judge said he wanted to hear argument on Monday regarding the fact that so many sexters and other amateur hardcore image producers don't even know what 2257 is.

Regarding Ms. Wolak, the judge was interested in her testimony regarding the attraction of porn watchers to young-looking performers, which he said made it that much more important that producers check actors' IDs carefully—which in turn gave weight to the idea that 2257 is important. Noting that the legal line of demarcation for performing is 18 years of age, the judge said he was reminded of the scene in The People v. Larry Flynt where Flynt, played by Woody Harrelson, is approached by a young woman seeking to become a stripper in Flynt's club, but when Flynt asks how old she is, she hems and haws about it, and finally says she's "this close" to 18, and would be of legal age by the time anyone discovers her. The judge thought such a situation is a real problem, especially since a number of underage women would want to work in adult entertainment—and that, he said, is one of the main issues in this case.

Finally, he dismissed much of Dr. Gail Dines' testimony because, though the statistics she had testified to were valuable, she was very biased against the adult industry and he felt that her position that all content-makers were "only in it for the money" was incorrect.

With that, Judge Baylson adjourned court for the day, and scheduled it to reconvene Monday morning to hear the final two government expert witnesses, and after that, closing arguments for both sides.

Check back with on Monday for the conclusion of this important trial.