PHILADELPHIA — Antiporn feminist Gail Dines and veteran photographer Barbara Nitke both gave extensive testimony during the fourth day of the trial for Free Speech Coalition vs. Eric Holder, which is being held in the courtroom of Judge Michael M. Baylson at the James A. Byrne Federal Courthouse in Philadelphia.
Representing FSC and 16 other plaintiffs in the case are attorneys J. Michael Murray and Lorraine Baumgartner, while attorneys Kathryn Wyer, James Schwartz, Hector Bladuell and Nathan Swinton are representing the U.S. Justice Department under President Barack Obama’s attorney general Eric Holder.
The New York City-based Nitke testified in support of the plaintiffs, while the Boston-based Dines testified on behalf of the Justice Department. Free Speech Coalition vs. Holder involves federal record-keeping law 18 U.S.C. § 2257, which the plaintiffs allege places an unfair hardship on companies or individuals presenting any sort of erotic depictions.
The proceedings began at 9:15 AM, and Dines was soon called to the witness stand by the defendant’s side in the case. Although Dines is originally from Manchester, England and speaks with a British accent, she now lives in Boston (where she is a professor of sociology and women’s studies at Wheelock College). Dines, who is the author of the antiporn book “Pornland: How Porn Has Hijacked Our Sexuality” and was a founding member of the antiporn organization Stop Porn Culture, told the court that she has spent 25 years studying adult entertainment. “All of my academic career has been devoted to the study of pornography,” Dines testified.
Dines said that she studies the adult industry closely and reads both XBIZ and AVN in order to “get a picture of what the industry really looks like.... I interview people in the industry. I also have many contacts in the industry who tell me what’s going on.” AVN’s Tom Hymes, who testified for the plaintiffs earlier this week, was present in the courtroom this morning — and Dines said that she was well aware of his work. Dines described the adult industry as an industry that “shapes cultural values and cultural norms.”
But Dines does not study the adult industry because she is favorable to it; she has been vehemently outspoken against it, in fact. A frequent guest on the BBC, she is considered a go-to person when the BBC and other media outlets are looking for an antiporn voice to interview.
Because of her antiporn efforts, Dines has been compared to law professor Catharine A. MacKinnon and the late Andrea Dworkin (two other feminists known for their vehement opposition to porn). And during her testimony today, Dines set out to paint the industry in a negative light and was quite critical of porn sites that use the word “teen” as a marketing tool.
Dines testified that between the “Playboy/Penthouse/Hustler days” of print media and the digital era, porn went from bad to worse. Porn “has become much more cruel, much more body-punishing” and often involves “some form of physical or verbal violence,” Dine testified. Dines said that during the digital era, there has been a major shift from Internet adult paysites to a domination by adult tube sites — and in a tube site-oriented environment, Dines said, the teen genre of porn has become increasingly prominent.
Dines described adult tube sites like PornHub and RedTube as a “gateway into the entire porn industry,” adding that people who use tube sites can find an abundance of porn in the teen genre. “I have spent many, many hours on tube sites,” Dines testified. Dines also said that free tube sites often lead to pay sites but said that the adult membership adult site model isn’t nearly as profitable as it once was. Dines said of membership porn sites, “They’re losing money like crazy…..It’s very hard to make money now from the production side.”
Dines testified that she has spoken to “child protection agencies” about the teen genre and finds that genre disturbing because it is “normalizing young women, very youthful-looking women as objects for male use…chipping away at the cultural norms that define children as off limits.” And Dines said that the type of imagery she typically encounters in the teen genre includes “the bobbie socks, the pink … the pastel colors, light makeup ... cartoon figures on her t-shirt,” whereas in the “regular genres” of porn, one typically hears terminology more along the lines of “bitches, whores and sluts.”
Dines cited other imagery she finds is common in the teen genre: “the hair on their head is done up like a schoolgirl…..You’ll have them with teddy bears, lollipops.”
With the teen genre, Dines testified, female models are not curvaceous or voluptuous; they are likely to have smaller breasts, she said. When asked about the college porn genre, Dines said, “College porn is the one subset where you get women who are more curvaceous.”
Gay porn, Dines said, has its own version of the teen genre: “in gay porn,” she said, “it’s called twinks.”
At one point during her testimony, Dines described adult production companies as “sweatshops.” Judge Baylson jumped in, saying, “You mean a sweatshop where people work for low wages?” But when Dines was unable to clarify why she considered adult production companies to be “sweatshops”—a word with an extremely negative connotation—Baylson decided that her reference to “sweatshops” was unnecessarily inflammatory and asked that it be stricken from the record.
During much of her testimony for the Justice Department, Dines implied that part of the porn industry — especially the teen porn genre — is trying to appeal to men who have sexual fantasies about under-age women. But when attorney Murray cross-examined Dines, he immediately set out to discredit her testimony and paint her as a zealot whose disdain for the adult industry is obsessive and irrational.
Murray asked Dines if she had described herself as an “antipornography activist” and an “antipornography advocate”; she acknowledged that she had described herself that way. Murray asked Dines if she had described Playboy founder Hugh Hefner as “society’s most influential pimp”; she acknowledged saying that.
Murray also inferred that part of Dines’ disdain for porn comes from a disdain for capitalism. Murray asked Dines if she has a problem with capitalism in general; she responded that in her view, it creates problems and leads to major wealth inequalities.
Citing some of Dines’ own research, Murray noted that the top three genres of online porn are (1) MILF, (2) gay and (3) teen. Murray said that based on Dines’ own research, “67-75 percent” of Internet erotica doesn’t fall into the teen genre.” And Dines responded that the figure was “a bit lower than what you’re saying.” Dines also said that the teen genre was larger when one factored in “allied terms” such as “tiny tits.”
Murray used the terms “MILF” and “cougar” more than once in his cross-examination of Dines. Murray did so to counter Dines’ claim that the porn industry is trying to normalize sexual fantasies involving under-age girls. If MILF and cougar erotica is so prominent in online erotica, Murray set out to demonstrate, it makes no sense to paint the adult industry as one that encourages sex with minors.
When Dines was giving direct testimony to one of the Justice Department’s attorneys, she said that she knows people in the adult industry who assist her with her porn-related research. “I interview people in the industry. I also have many contacts in the industry who tell me what’s going on.” And during Murray’s cross-examination, Dines asked her who those industry contacts were. Dines replied, “They won’t allow me to speak their names. They ask me not to disclose their names…..They’re nervous about coming forward .... They’re scared of retribution from the pornography industry.”
Murray asked Dines if she was an expert on sexting (the act of sending nude or erotic photos via mobile/wireless devices). Dines replied, “No expertise.”
Today’s other witness, Barbara Nitke, has a view of porn and the adult entertainment industry that is diametrically opposed to Dines’: the New York City-based photographer spent much of the 1980s taking still photos on the sets of adult films. In 2012, Nitke published a photo book dominated by porn stills she took in the 1980s.
By the time Nitke was called to the witness stand by Murray and began testifying on behalf of the FSC and other plaintiffs in the case, Dines had left Judge Baylson’s courtroom. Dines didn’t return.
Murray, before getting into the specifics of 2257 and why Nitke is opposed to it, asked her to discuss her background. Nitke said that she began taking porn stills in New York City in 1982 and continued doing so until the end of that decade. But in the early 1990s, Nitke told Murray, she changed her focus and began taking BDSM-related photos. The presence of the porn industry in New York City, Nitke said, decreased considerably in the early 1990s—and rather than move to Los Angeles and work with adult companies on the West Coast, she opted to stay on the East Coast.
Nitke noted that she has published two photo books: “American Ecstasy” and 2005’s “Kiss of Fire.” The goal of “Kiss of Fire,” Nitke said, was to present “a romantic view of sadomasochism .... I photographed private couples who did BDSM.”
Murray asked Nitke about her pre-2257 years in the porn industry. Back in the 1980s were there adult films companies in New York City that didn’t check the IDs of adult film actors on a regular basis? “Not that I know of,” Nitke responded.
Did the adult film companies that hired Nitke during the 1980s express any interest in using minors in their sexually explicit productions, Murray asked? Nitke replied: “Not only did they not have interest — I think they would have been appalled .... It’s just something they wouldn’t tolerate.”
Murray, trying to illustrate the effect that 2257 is having on her work, asked if she would be able to “maintain 20 hours a week in your home?” in order to be available for possible 2257 inspections. Nitke replied, “No, because I’m out working.”
When Murray asked Nitke to cite ways in which 2257 is affecting her work, she said that before she published “American Ecstasy” in 2012, she had an idea for another erotic photo book: that book would have been called “Voyeur” and would have spanned 1982-2007. But she decided against publishing “Voyeur” due to 2257 concerns.
“My understanding is if I mix (pre-1995 photos and post-1995 photos in a book), I would have to have photo IDs of the earlier photos also,” Nitke said. And obtaining valid photo IDs for an abundance of adult film stars she photographed in the 1980s, Nitke added, would be extremely difficult. Besides, she said, the ages of the performers was verified by the companies when she took those stills on porn sets many years ago.
When Murray asked Nitke why she finds 2257 burdensome, she said, “For one thing, just putting together the filing system. I’m very confused by this law. It’s very time-consuming.”
2257, Nitke complained during her testimony, can be vague and isn’t always clear on the specific things that she needs to do to be in full compliance with the law. “One of my problems is that I don’t know what’s covered,” Nitke said. “It’s kind of in the eyes of the beholder.”
Murray also brought up 2257-A when he was questioning Nitke and mentioned simulated sadomasochism. Nitke said of her photography, “If I feel there’s any kind of sadomasochism going on, I collect the records.”
Murray asked Nitke how many photos she typically takes during a shoot. Nitke responded: “I probably shoot about 1,000 images in a photoshoot,” she said. When Murray asked if she put 2257 labels on every single one of the roughly 1,000 photos taken during a shoot, Nitke said, “I think that’s impossible. I don’t know how I would do that.”
When Judge Baylson questioned Nitke, he asked her some questions about paying taxes in order to make a point. Has she ever been audited by the Internal Revenue Service, the judge asked? “No,” Nitke replied. Does she collect sales taxes? “I pay it online,” Nitke replied.
Do you find it a burden to have to keep so many tax records, the judge asked. “Of course,” Nitke said. Well, Judge Baylson asked, what’s the difference between being required by the government to keep so many tax records and having to keep 2257-related records?
“I view it differently,” Nitke said. “As a citizen, it’s my duty to pay my taxes .... The 2257 law, I feel, is not part of my duty as a citizen. It’s a burden on my free speech. I don’t think it serves any kind of good function. Taxes do.”
Nitke added that she opposes 2257 because it “stigmatizes sexual speech.”
Nitke has a history of taking legal action against legislation that she believes is unconstitutional. In 2001 (the year President George W. Bush took office), Nitke and the National Coalition for Sexual Freedom (an organization heavily focused on BDSM rights) filed a lawsuit based on their belief that the Communications Decency Act was unconstitutional and had a chilling effect on free speech. That case was Nitke vs. Ashcroft, later Nitke vs. Gonzales after Alberto Gonzales replaced John Ashcroft as attorney general for the George W. Bush Administration. In 2005, a judicial panel declared that Nitke and NCSF had presented insufficient evidence that the Communications Decency Act had a chilling effect on free speech.
After Nitke was excused, Judge Baylson addressed a deposition of FBI Agent Chuck Joyner that pertains to this case. At issue in that deposition is whether the 2257-related inspections that Joyner conducted constitute “searches” as defined by law. With searches, there must be a search warrant.
No 2257-related inspections have taken place in six years, and none have taken place since President Barack Obama was sworn into office in January 2009. However, the FSC and other plaintiffs in this case are fearful that those searches could resume at some point—and even if that doesn’t happen while Obama is president and Eric Holder is his attorney general, the plaintiffs fear that the inspections could resume under a future presidential administration (be it Democrat or Republican).
This week, many different people have testified in Philadelphia on behalf of the plaintiffs in this case, including First Amendment attorney Jeffrey J. Douglas (who serves as chairman of the FSC’s board of directors) on Monday, Dian Wilson (office manager for the North Carolina-based Sinclair Institute, which specializes in educational erotica) on Monday and Tuesday. The plaintiffs had no less than seven different witnesses on Tuesday: Wilson, Dr. Betty Dodson (a sex educator and leader of the sex-positive feminist movement), Dodson’s business partner Carlin Ross, erotic photographer David Steinberg, San Francisco-based sexologist Carol Queen, Hymes and photojournalist Barbara Alper.
And Wednesday included additional testimony from Hymes as well as testimony from veteran adult film star Nina Hartley and Ohio-based David Levingston (a former photojournalist who now focuses on erotic photography). Throughout the trial, Murray has set out to demonstrate that 2257 was unnecessarily burdensome for people involved in any sort of erotic material. Dodson, for example, testified that she had a sex education-oriented area of her website called the Genital Art Gallery in which people submitted photos of their genitals for educational — and thanks to 2257, Dodson testified, the art gallery has all but died.
Murray, more than once, has presented testimony showing that 2257 has had a chilling effect on erotic speech. Levingston, for example, testified that he removed a photo from his website because he feared that it could be interpreted as sadomasochistic and could create 2257-A problems for him. Hymes testified that he has a website called The Daily Babylon and is refraining from adding photos to that website that he fears could “trigger 2257.” And Queen, who has a pro-masturbation event called the Masturbatathon, testified that she would like to film that event and make it available for future viewing but is worried about doing so because of 2257.
Today, Dines became the Justice Department’s first star witness in this trial. And the Justice Department will present testimony from additional witnesses next week. How soon the trial will conclude and Baylor will reach some type of decision remains to be seen.
On Wednesday, the judge commented that he hoped the plaintiffs and defendants would be able to work out a compromise — perhaps one that would involve keeping 2257 rather than abolishing it (which is what the plaintiffs are hoping for) but doing away with the elements of it that the plaintiffs find to be the most burdensome and unreasonable. Baylor said yesterday that while the plaintiffs are facing an “uphill battle” in their efforts to have 2257 declared unconstitutional, he understood why they found elements of it to be problematic.
Free Speech Coalition vs. Holder reconvenes in Baylson’s courtroom this Tuesday, June 11, at 9:15 AM Eastern time.
