Seven Witnesses Testify on Day 2 of FSC v. Holder

Alex Henderson

PHILADELPHIA — Attorneys representing the Free Speech Coalition (FSC) and 16 other plaintiffs in Free Speech Coalition v. Eric Holder presented testimony from seven different witnesses during the second day of the trial in that case.

The case 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.

Testifying in Judge Michael M. Baylson’s courtroom at the James A. Byrne Federal Courthouse in Philadelphia on behalf of the plaintiffs were Dr. Betty Dodson, a sex educator and leader of the sex-positive feminist movement; Dodson’s business partner Carlin Ross; erotic photographer David Steinberg; sexologist Carol Queen; Tom Hymes, senior editor for Adult Video News (AVN); photojournalist Barbara Alper; and Dian Wilson, office manager for the North Carolina-based Sinclair Institute (an adult company specializing in educational erotica).

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 84-year-old Dodson and business partner Ross, who is 40, both testified that the material they present on their website, dodsonandross.com, is designed to help readers gain a better understanding of their sexuality and that 2257 requirements are making that difficult for them.

Dodson testified that because of the record-keeping demands of 2257, their Genital Art Gallery has lost of a lot of ground. The Genital Art Gallery is a project is in which readers are asked to submit photos of their genitals minus their faces not for pornographic purposes, but for educational purposes. Because of 2257, Dodson said, readers believe they cannot contribute to the gallery and maintain their anonymity; therefore, she said, the gallery has all but died.

“It ended the gallery,” Dodson said of 2257. And Dodson said the Gallery is “finished as far as I’m concerned.” Dodson, explaining to Murray why she sees the need for dodsonandross.com, said, “We’re still in the dark ages regarding female sexuality, and I’m sick of it.”

Carlin Ross, during her testimony, described the mission of dodsonandross.com as “sexual consciousness raising.” Ross, explaining how the Genital Art Gallery fit into Dodson and Ross’ educational motives, said, “As an educator, I think we need to look at real genitals.”

When Judge Baylson asked Ross if she believed that all individuals appearing in explicit depictions should be 18 or over, she replied, “Absolutely……We’re a sex-positive brand.”

Ross also testified that 2257 has had the effect of “quieting free speech.” She said that she is willing to be 2257-compliant but complained that 2257 becomes difficult to contend with “when there’s all this red tape and they’re changing the regulations.”

Carol Queen, who serves as staff sexologist for the San Francisco-based sex toy merchant Good Vibrations, described the different ways in which 2257 is affecting her. One of them is with a masturbation-oriented event called the Masturbatathon, which she said is meant to promote a positive view of masturbation (Queen founded the event in response to the firing of Joycelyn Elders, who lost her position as surgeon general under President Bill Clinton for expressing a positive view of masturbation).

Queen, who is 55, testified that the Masturbatathon has included live online streaming of acts of masturbation and that intercourse isn’t allowed during the event. She said that although the participants have been adults and that their age was verified, she is concerned that 2257 would make it problematic for her to film the event for future viewing. Queen said it would be burdensome to have 2257 releases for everyone who participates in the Masturbatathon.

“We are concerned about the 2257 question, and increasingly so the more we find out about it,” Queen said.

Queen, in addition to her sexologist work, puts together erotic collage art on the side. That collage art, she said, is a collage of erotic images from different sources, and Queen fears that publishing a book of her collage art would be risky. “I would like to publish these into a book, and I am very concerned,” Queen testified.

Barbara Alper, who has been taking erotic photographs since the 1980s and is now 63, testified that she would like to publish a book containing some of the erotic photos she has taken over the years but is worried about doing so because of 2257. Alper told Murray that her photos are not posed photos, but rather, photos depicting erotic activity in places ranging from New York City to Bangkok, Thailand—and she could not possibly obtain picture IDs for everyone in those photos.

Asked by Murray how she knew the people she photographed in places like the Hellfire Club (a BDSM club in New York City) were legal adults, she replied that because the Hellfire Club and other places were establishments that served alcohol, age verification occurred when the people she photographed had to present their IDs upon entering those establishments.

David Steinberg, who said that the focus of his photography is, “ordinary folks being sexual at home” and doing so “in non-theatrical ways,” testified that he found 2257 to be problematic when he wanted to edit an English-language version of the Norwegian monthly magazine Cupido. Steinberg, an extensive contributor to Cupido, testified that the publisher liked his idea of an English-language edition of Cupido for the United States and wanted him to edit it. But Steinberg felt that doing so was risky because many of the photos in Cupido are taken in European countries that don’t have the 2257 law.

Steinberg also mentioned that he had concerns about an English-language edition of Cupido because he believed that in Norway, the “age of consent” is 16 rather than 18.

AVN’s Tom Hymes testified that 2257 has a “chilling effect” with The Daily Babylon, a website he publishes on the side. Hymes, who fears that the type of photos he would like to post on his site could “trigger 2257,” told Murray that the site is not profitable and that he needs to maintain a full-time “day job” at AVN—and because he must be physically present at AVN, he would not be able to be present during a 2257 inspection in his home should one occur. Hymes said, “I’m not willing to have a warrantless search……I’m not able to comply with 2257 because I have a day job.”

Dian Wilson, who testified in the trial yesterday, offered additional testimony this morning. Wilson, who is in charge of overseeing 2257 records for Sinclair Institute, described the amount of work that goes into that: she said that her 2257-related duties include maintaining not only records for Sinclair’s original videos, but also, for any sexually explicit material that Sinclair obtains from other companies. Wilson testified that if Sinclair uses any videos obtained from Wicked Pictures, for example, she is required under 2257 to keep Wicked’s age verification records on file.

“We sell many videos from other companies,” Wilson testified.

Attorney Jeffrey J. Douglas, who serves as chairman of the FSC’s board of directors, was present in Judge Baylson’s courtroom today during some of the testimony. He did not testify today but offered in-depth testimony on 2257 yesterday.

The trial is scheduled to continue tomorrow morning in Judge Baylson’s courtroom, and Murray told Baylson he was confident that the plaintiff will be able to rest its case tomorrow. After that, attorneys for the defendant will begin presenting their witnesses.

For previous coverage of this trial, click here.

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