Witnesses Testify on 2257 in FSC vs. Holder

Alex Henderson

PHILADELPHIA — Attorney Jeffrey J. Douglas was among the witnesses who testified today on behalf of adult industry plaintiffs in the federal trial for Free Speech Coalition vs. Eric Holder, which began today in Judge Michael M. Baylson’s courtroom at the James A. Byrne Federal Courthouse in Philadelphia.

Representing FSC and 16 other plaintiffs in the case were 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 plaintiffs in the case allege that 2257 laws impose an unfair burden on adult entertainment companies.

Other witnesses who testified today included Diane Wilson, office manager for the North Carolina-based Sinclair Institute (an adult company specializing in educational erotica); Dr. Michelle Drouin, associate professor of psychology at Indiana University-Perdue, and Eugene Mopsik, executive director of the American Society of Media Photographers (ASMP).

Douglas, who has been representing clients in the adult industry since 1982, serves as chairman of the FSC’s board of directors.  Douglas, during testimony, told Baylson that while adult companies wholeheartedly support age verification for models appearing in sexually explicit material, 2257 in its current form imposes an unnecessary hardship on both primary and secondary distributors of adult material. Douglas told Baylson that while 2257 has been in existence since 1988, it has evolved along the way and become more draconian than it was in the past. “In its original version,” Douglas said, “there was no criminal liability” for “not having records.”

Murray asked Douglas if adult companies would become lackadaisical about age verification were 2257 to be abolished; Douglas responded that it was standard practice for producers of adult content to check models’ ID before 2257 and that they would maintain their age-verification policies if 2257 were to be overturned.  Ascertaining that models are legal adults helps create a climate of “good will” in the adult industry, Douglas said.

“If 2257 were to disappear tomorrow,” Douglas said, “no sane producer would knowingly use a minor. There are severe criminal sanctions.”

When Murray asked Douglas the FSC’s position on child pornography, he responded, “We are opposed to it absolutely” and that the adult industry has “encouraged aggressive prosecution of child pornography.” Douglas added that while the FSC and others in the adult industry, including the organization ASACP (Association of Sites Advocating Child Protection), are happy to work with law enforcement agencies in combating child pornography, some aspects of 2257 are making it difficult to operate an adult business.

For example, Douglas noted that 2257 requires adult businesses to be available for inspections 20 hours per week — which is problematic because some adult businesses are small mom-and-pop operations with only a handful of employees. Some adult content providers, Douglas said, are literally working out of a basement in someone’s home. “If you are not a nine-to-five business with multiple employees, it is impossible,” Douglas said.

Douglas added that some small adult companies have added employees they didn’t need for the sole purpose that someone could be present 20 hours per week should a 2257 inspection take place.

Douglas, offering additional thoughts on age verification, mentioned one of the controversies of the 1980s: the Traci Lords case. Lords, it was revealed in the 1980s, had been under age when some of her adult films were made; she had lied about her age and presented fake documents. Douglas stressed that even before 2257, adult companies were diligent about verifying models’ ages, but noted that Lords went to great lengths to be deceptive about her age.

Diane Wilson, when questioned by Murray, described the type of efforts required at the Sinclair Institute to be in compliance with 2257. Wilson told the court that she is in charge of maintaining 2257 records for Sinclair and that the company must devote considerable time and resources to 2257 compliance. “It now takes up about half of my job, about 20 hours a week,” Wilson said of her 2257-related duties at Sinclair.

Wilson testified that Sinclair regularly conducts what she calls “2257 fire drills” that simulate a 2257 inspection from FBI agents.

“It’s a way that we test ourselves,” Wilson said. Baylson asked Wilson how well her record-keeping holds up during those mock 2257 inspections; “I’ve always passed 100 percent,” she replied.  

One subject that is finding its way to some discussions of 2257 is “sexting,” the practice of people sending sexually explicit images of themselves via mobile/wireless devices.

Dr. Michelle Drouin told Murray that she has conducted surveys on sexting in 2009 and 2011; based on her two surveys and four other sexting-related surveys, Drouin estimated that approximately one-third of young adults, aged 18-24, have engaged in sexting. She also estimated that approximately 10 million young adults have engaged in sexting. Presently, 2257 laws don’t address sexting specifically.

When Murray questioned Mopsik (who was the first witness of the day), he tried to determine the type of burden that 2257 can impose on photographers. Mopsik testified that when 6000 members were recently surveyed, 400 of them were involved in photography that was erotic or in some cases, sexually explicit.

Murray described the requirements of 2257 to Mopsik and asked him what type of burdens those requirements would impose on ASMP members. Mopsik responded that maintaining records for every image would be difficult.

Testimony in Free Speech Coalition vs. Holder is scheduled to continue this week in the Byrne Federal Courthouse.