Page 114 - AVN July 2013

The judge was interested in Wolak’s testimony regard-
ing the attraction of porn watchers to young-looking per-
formers, which he said made it that much more impor-
tant that producers check actors’ IDs carefully—which in
turn gave weight to the idea that 2257 is important.
Finally, he dismissed much of Dines’ testimony
because, though the statistics she had testified to were
young-looking performers, Linz agreed that the figure
was at least that high.
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 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. The issue is central 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 also asked Linz about outside research he’d
relied on to form his opinions, and brought out that Linz
had used a 1992 report by former FBI agent Kenneth
The judge likewise had sympathy for plaintiff
photographers David Steinberg, Barbara Alper, David
Levingston and Barbara Nitke, who he called “a very
credible person.” He further noted Tom Hymes’ testimony
that he would have posted hardcore images on his site if
it hadn’t been for2257, noting further Hymes’ testimony
that 2257 had therefore chilled his sexual speech.
T urning to the two FBI agents, the judge said he
found them “credible” and “accurate,” though he felt that
their inspection procedures, and particularly the check-
lists 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 warrant-
less 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.
valuable, she was very biased against the adult industry.
Day 8: Expert Witnesses and Arguments
The final day of the trial was also its most fast-moving,
with two expert witnesses being heard in the course of
about three hours, and Judge Baylson limiting closing
arguments from each side to 45 minutes each.
The day began 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 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.
Lanning in developing his opinion about how small the
Biro testified about “pubertal maturation”—the age(s)
percentage of child porn is that finds its way into
commercial productions. Lanning had supplemented
those findings in a 2010 update, about which Linz said
he wasn’t aware.
ofthe word ‘teen’is to
After some brief redirect, Judge Baylson called a recess,
after which he announced that he would review with the
attr act peopleinterested
attorneys his impressions of the witnesses so far, and what
in y oung performers.
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
”“The use
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.
I think that
On cross, Murray brought that “pubertal maturation”
is a very important factthat can’t be ignor ed.”
was not an exact science and should not be used to
determine someone’s age.
The next witness was Dr. Philip Stark, a professor of
statistics and chairman of that department at the
es
FEATURE
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, had described itself well
in both its filings and in board chair Jeffrey Douglas’
testimony. He opined that those witnesses’ testimony
deserves great weight regarding their First Amendment
concerns.
The judge said he attached 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.
The judge thought Dr. Carol Queen’s testimony was
very credible and deserved great weight, and appeared to
have much sympathy for the fact that she was having
trouble getting people to participate in her “masturbate-a-
thons” because of their fear of revealing their identities to
government inspectors.
114 | AVN.com | 7.13
—Judge Michael M. Baylson
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, 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.
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 cell phones, email
and social networks to send sexually explicit images to
each other and others, or to receive 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.
After the testimony, Judge Baylson gave the attorneys a
half-hour to prepare their closing arguments, and limited
the arguments to 45 minutes each.
Both sides rose to the occasion, with Murray noting at
the outset , “This case is a serious one involving serious
First and Fourth Amendment issues,” and, “If the Court
strikes down 2257 and 2257A ... Congress can fix it”
with revised legislation that dealt with the Court’s
concerns.
Murray spent time noting the incredible scope of the