PHILADELPHIA — Two of the FBI agents who conducted inspections for the FBI’s 2257 unit in 2007, Charles Joyner and Stephen Lawrence, both testified on behalf of the Department of Justice during the sixth day of the Free Speech Coalition vs. Holder trial.
Testifying on behalf of the plaintiffs today was Dr. Mark Zimmerman, a professor of public health at the University of Michigan. The trial is taking place 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 case involves federal record-keeping law 18 U.S.C. § 2257, which the plaintiffs allege places an unfair and unnecessary burden on companies or individuals presenting any sort of erotic depictions.
Lawrence, whose testimony began yesterday, returned to the witness stand this morning for additional cross examination from Murray. Lawrence, who is still an agent for the FBI, was asked to describe, in detail, the inspections that he conducted for the FBI’s 2257 unit six years ago. Lawrence testified that in 2007, he conducted a total of eight 2257-related inspections for the FBI — and the companies he inspected included, among others, Angry Young Man, Authentic, JT Video, Doo Goo and Dead Man Hanging.
Describing the 2257 inspection of Angry Young Man, Lawrence testified that he found a possible problem that was unrelated to 2257: the company claimed to have used some adult content that was surreptitiously made on military bases. Lawrence said that he reported his findings to the Naval Criminal Intelligence Service so that it could investigate the matter and determine if any violations of the laws of military conduct had taken place.
With Dead Man Hanging, Lawrence testified, he found two 2257 violations: inadequate cross-referencing, and the company’s 2257 records were being kept separate from their regular business records.
The FBI’s 2257 inspection of JT Video, Lawrence testified, occurred on May 31, 2007, in a private residence rather than in an office building. That inspection, according to Lawrence, received some media coverage because the owner of JT Video told a reporter that a 2257 inspection was taking place. After the reporter wrote about that inspection on his blog, the inspection was moved up; the owner wanted to wait until June 11 for an inspection because he was going out of town, but the inspection was moved up to May 31.
“It was a reporter’s blog, I believe” Lawrence told Murray. “That’s what I remember.”
Murray brought up the subject of sexting (the act of nude, erotic or sexually explicit photos being privately transmitted electronically via mobile/wireless devices) during his cross-examination of Lawrence, and the FBI agent said of the FBI’s 2257 inspection program, “As far as sexting, we didn’t monitor that .... It was outside the purview of what we were looking for.” The 2257 inspection program, Lawrence testified, strictly dealt with “commercially available pornography” — and sexting didn’t fit that description.
The FSC has alleged that 2257 is a violation of the 4thAmendment to the U.S. Constitution, which forbids unlawful search and seizure. And Murray, raising those 4th Amendment concerns during his cross-examination of Lawrence, asked him if he thought the Constitution made his job as an FBI agent more “difficult” or more “complicated.” Lawrence responded: “I wouldn’t say that the Constitution complicates things.”
Murray continued along those lines, asking if his job as an FBI agent would be easier without the need to show “probable cause.” But Baylson complained that he found Murray’s question “argumentative.” The judge said, “What you’re asking is abstract.”
The judge had some questions for Lawrence. Baylson asked Lawrence how the eight 2257 inspections he conducted six years ago differ from FBI searches in which a search warrant was obtained, and he asked Lawrence to specifically address white-collar crime — not drug raids. Lawrence responded, “Generally, we treat search warrants the same .... Normally, we would wear raid jackets to identify ourselves as law enforcement agents.” During the FBI’s 2257 inspections six years ago, Lawrence said, raid jackets were never worn — the agents always wore normal business suits.
Lawrence also told the judge, “We didn’t use a search warrant to conduct these inspections.”
The judge noted that when people suspected of a crime — including a white-collar crime — find out that an FBI raid is going to occur, they sometimes destroy evidence that could be used against them. But Baylson said that with the 2257 inspections of 2007, there would be no incentive to destroy records.
Baylson said that by destroying 2257 records, porn companies would “be shooting themselves in the foot.” And Lawrence said that if a porn company was expecting a 2257 inspection and knew exactly what titles the FBI planned to examine for possible 2257 violations, “It would give them an opportunity to clean up their records, but not destroy them.”
After Lawrence finished testifying, Justice Department attorney Wyer called former FBI agent Charles R. Joyner to the witness stand. Joyner is retired from the FBI, but he testified that when he was still with the FBI back in 2007, he conducted 20 inspections for the FBI’s 2257 inspection unit. Joyner testified that the companies he inspected included Diabolic Video, Wicked Pictures, All Good Video, Dark Side Entertainment, Temptations, Silver Star, Real Wild Girls and Pony Boys, among others.
Wyer asked Joyner what types of companies were selected for 2257 inspections. “It had to be a sexually explicit act that was involved in interstate commerce,” Joyner told Wyer.
Much of the testimony on behalf of the plaintiffs has addressed the 2257 concerns of people who aren’t adult pornographers per se — for example, artists who provide erotic paintings. And Wyer, during her direct examination of Joyner, set out to demonstrate that the FBI’s 2257 inspection unit was only interested in hardcore adult porn. Did the FBI go after any still photographers with its 2257 program, Wyer asked? No, Joyner responded.
Were books containing sexual or erotic photos a target? No, Joyner told Wyer. Any people who exhibit in art galleries or museums? No, Joyner responded. Dating sites? No, Joyner told Wyer.
Wyer asked Joyner if any of the 20 companies he inspected felt that a search warrant was needed for that inspection. “No,” Joyner said.
Wyer asked Joyner if he ever “forcibly” entered the premises if no employee of a porn company was present for a 2257 inspection. “No, ma'am,” Joyner responded. And if someone was present when FBI agents showed up for a 2257 inspection, when did you enter the premises? “Once they invited us in,” Joyner answered.
Another thing Joyner addressed during his testimony was the FBI’s pre-inspection process. When agents for FBI’s 2257 unit were trying to determine what companies and what specific titles should be chosen for 2257 inspections, Joyner testified, they would purchase adult DVDs online. Then, they would note who the performers on that DVD were — and when the inspection occurred, Joyner said, they would make sure that the company had documents and identification proving that the performers were legal adults.
Yesterday, Lawrence testified that when FBI agents purchased those adult DVDs online, they did so under assumed names. Using an official FBI credit card to make those purchases, Lawrence said, would have alerted the porn companies to the exact titles that were going to be inspected for possible 2257 violations. Lawrence testified yesterday that while the FBI’s 2257 unit gave many porn companies advance notice that an inspection was going to be taking place, the companies were not told which specific titles were going to be examined when the agents conducted an inspection.
Joyner testified that he suspected that an Asian woman appearing in one of the adult videos of a company targeted for a 2257 inspection might be under-age. Joyner said that an Asian Buddhist calendar FBI agents saw during that inspection indicated that she was under age. But when the FBI agents checked her age using a standard calendar — not an Asian Buddhist calendar — they verified that she was, in fact, a legal adult under U.S. law.
During her direct examination of Joyner, Wyer tried to demonstrate that the FBI’s 2257 inspection unit was not hostile to the adult entertainment industry but rather, was willing to work with the industry to make the inspections go smoothly. And Joyner testified that when the inspection program was active, he participated in a panel on 2257 during the XBIZ Hollywood conference.
The purpose of the XBIZ Hollywood panel, Joyner said, was “to provide information about the inspection process. Joyner said he wanted porn companies to know that “by helping us, we would get out of their hair more quickly.” Joyner also said, “We wanted them to know all aspects of the law.”
Wyer asked Joyner what became of the FBI’s 2257 inspection program in 2007. It was terminated, he testified. And does the FBI have any plans to revive the program in 2013, Wyer asked? “No, ma'am,” Joyner replied.
Joyner’s testimony was followed by testimony from a witness for the plaintiffs: the University of Michigan’s Dr. Mark Zimmerman. Murray, during his direct examination of Zimmerman, asked him to discuss some research he had done on the subject of sexting. Zimmerman testified that over a two-year period, his department conducted its “Virtual Network Study” — and part of the study dealt with sexting. Zimmerman testified that during the sexting part of the study 30 percent of the people surveyed had sent sexts, while 40 percent had received sexts. The three ethnic groups that were surveyed for the study, Zimmerman told Murray, were black, white and Latino — and the people surveyed were in the 18-24 age bracket.
Zimmerman testified that he wanted the study to be “nationally representative,” and therefore, four different regions of the U.S. were included: the Northeast, the Southeast, the Midwest and the West.
With the study, Zimmerman said, he wanted to determine if there was any correlation between sexting and “sexually risky behavior.” And the results of the study gave no indication that there was, Zimmerman testified.
On cross examination, Zimmerman was asked for specifics about the types of erotic activities shown in the sexts. Could be break down the sexts into specific activities such as masturbation or intercourse, Zimmerman was asked? No, Zimmerman responded, he didn’t have the sexts broken down into those specific categories. And did he know how many of those sexts depicted “only breasts?” No, Zimmerman responded, he did not have any of the sexts broken down into an “only breasts” category.
On redirect, Murray asked Zimmerman what type of margin of error the study had. Zimmerman said, “I asked one of my colleagues if he could give me a margin of error.” And the margin of error for the study, he testified, was five points for males and three points for females.
Zimmerman also testified that one of his concerns about the survey was that youths who lacked Internet access would be underrepresented. When Murray asked Zimmerman roughly what percentage of youths in that 18-24 age range he was studying might be excluded from the study due to lack of Internet access, the University of Michigan professor responded: “I don’t know the exact number, but probably about 10 percent.”
The trial for FSC vs. Eric Holder began in Philadelphia over a week ago on Monday, June 3.
Last week, the majority of witnesses testified on behalf of the plaintiffs. Those witnesses included erotica photographer Barbara Nitke, who spent much of the 1980s taking stills on the sets of adult films in New York City; veteran adult film star and sex educator Nina Hartley; First Amendment attorney Jeffrey J. Douglas, who serves as chairman for the FSC’s board of directors and has been representing clients in the adult industry since 1982; New York City-based Dr. Betty Dodson, a sex educator and leader of the sex-positive feminist movement; Dodson’s business partner Carlin Ross, also based in New York City; Dian Wilson, officer manager for the North Carolina-based, sex education-focused Sinclair Institute; San Francisco-based sexologist Carol Queen; Tom Hymes, senior editor for AVN; Ohio-based David Levingston, a former photojournalist who now focuses on erotic photography; and photojournalist Barbara Alper.
The Justice Department’s star witness on Friday was Manchester, England-born Gail Dines, who is a professor of sociology and women’s studies at Wheelock College in Boston and is known for her vehement disdain for the adult entertainment industry. Dines is the author of the anti-porn book “Pornland: How Porn Has Hijacked Our Sexuality” and was a founding member of an anti-porn organization called Stop Porn Culture. And during her testimony on Friday of last week, she tried to paint the adult industry in a very negative light by claiming that the so-called “teen genre” of adult entertainment is going out of its way to promote sexual fantasies involving under-age girls.
During this trial, J. Michael Murray has conducted all of the questioning on behalf of the plaintiffs (Lorraine Baumgartner has not done any of the questioning). With the other side, however, the different attorneys have taken turns questioning the witnesses.
Scheduled to testify on Friday, June 14, is Dr. Daniel Linz, a professor at UC Santa Barbara. Linz has spoken extensively about adult entertainment-related matters in the past. One of his areas of expertise has been the “adverse secondary effects” argument used against brick-and-mortar adult businesses such as strip clubs and adult bookstores — that is, the argument the presence of such businesses in an area tends to promote social problems in that area.
In the past, Linz’ research and testimony has been used to debunk the “adverse secondary effects” argument and demonstrate that the presence of adult businesses in an area does not automatically harm or worsen the quality of life in that area.
Justice Department witnesses scheduled to testify on Monday, June 17, include Dr. Frank Biro and Philip Stark.
Baylson said that on Friday, he will be addressing attorneys for both the FSC and the Justice Department and giving his evaluation of their witnesses. Baylson plans to evaluate the witnesses for both sides one by one, giving his views on the merits of their testimony. And Baylson said he is hoping that on June 17, attorneys for both the plaintiffs and the Justice Department will be able to give their closing statements in the trial.
How Baylson will ultimately rule in this trial remains to be seen. But however he rules, one of the two sides will no doubt file an appeal right away. On Wednesday of last week, Baylson said that although the plaintiffs in the case are facing an “uphill battle” in their efforts to have 2257 declared unconstitutional, he understood why they found some aspects of 2257 to be burdensome and problematic — and he said that ideally, he would like to see the two sides work out some type of compromise that they could both learn to live with. Perhaps that compromise, Baylson told the attorneys for both sides on June 5 (the third day of the trial), could involve eliminating certain aspects of 2257 (specifically, the parts the plaintiffs find to be the most objectionable) without throwing the law out altogether.
Baylson has noted the possibility that FSC vs. Holder could eventually end up being appealed all the way to U.S. Supreme Court, and that should that happen, the high court has the option of either deciding to hear the case or deciding against hearing the case.
Baylson, throughout this trial, has not been unsympathetic to the concerns of the plaintiffs. In fact, he has overruled most of the objections that attorneys for the Justice Department have had to Murray’s questions.
Baylson has an extensive legal background in Philadelphia, where he was born in 1939. A 1964 graduate of the University of Pennsylvania Law School, Baylson was an assistant district attorney in Philadelphia in the late 1960s but spent much of the 1970s and 1980s in private practice. Baylson, a George W. Bush nominee, has had a seat on the U.S. District Court for the Eastern District of Pennsylvania since 2002.
FSC vs. Holder is scheduled to reconvene on Friday, June 14, in Baylson’s courtroom at 10 a.m. Eastern time.
