Nina Hartley, Others Testify on Day 3 of FSC vs. Holder

Alex Henderson

PHILADELPHIA — Veteran adult film star Nina Hartley was among the witnesses who testified on behalf of the Free Speech Coalition and 16 other plaintiffs in the third day of the trial for Free Speech Coalition vs. Eric Holder.

Also testifying in Judge Michael M. Baylson’s courtroom at the James A. Byrne Federal Courthouse in Philadelphia on behalf of the plaintiffs were Springfield, Ohio-based David Levingston, who specializes in nude photography, and Tom Hymes, senior editor for AVN.

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 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 hardship on companies or individuals presenting any sort of erotic depictions.   

During her testimony, the 54-year old Hartley (who has been in the adult entertainment industry for 31 years — first as a stripper beginning in 1982, and from 1984 on as an adult film performer) told Murray that 2257 is unfair to adult entertainment companies because it singles them out for burdensome regulations that are difficult to comply with.

“My biggest problem with 2257 is that it particularly puts sexual speech in a separate category from other speech. It assumes we are criminal before the fact…. 2257 says I have to declare before the fact that I’m not a criminal. I’m being singled out because of my profession.”

Murray, during his questioning of Hartley, tried to establish that careful, conscientious age verification was the norm in the adult industry before 2257 was implemented. 2257, in its original form, was enacted in 1988. But more recently, it has evolved to include criminal penalties for non-compliance.

Today, Hartley testified that during her pre-2257 years in the adult industry, the adult film companies she worked with were, in fact, careful to check the photo IDs of any performers who were used in their sexually explicit films. Murray asked Hartley if any of the companies she worked with back in the 1980s had any interest in using minors in their films; Hartley replied, “Absolutely not.” She went on to say: “The consensus was that anyone using minors should be tied to an anthill in the hot sun.”

When Judge Baylson questioned Hartley, he expressed some concerns about the use of the word “teen” to market adult films. Baylson, noting that someone in his or her teens can be either a legal minor in the United States (that is, 13, 14, 15, 16 or 17 years of age) or a legal adult (age 18 or 19), asked Hartley if the use of the word “teen” by adult companies can “create some danger” than minors between 13-17 years of age might want to become performers in adult material before they become adults; Hartley replied, “Great danger, no. Most people do not want to be in adult films.”

Baylson told Hartley that a teen “could be anywhere from 13 to 19” and asked if the use of the word teen is meant to attract those who want to view “younger-looking people.” She replied “Absolutely.” When the judge asked her why adult companies use that word, she said, “It’s a commercial product” that “uses advertising language.”

Baylson noted that porn companies employ “a lot of advertising of sexually explicit material using the word teen,” and Hartley said that the use of that word is merely a marketing tool designed to convey the presence of a “young-looking person.” In actuality, Hartley said, that young-looking person is a legal adult—and porn companies are not implying that they are actually using minors in their productions. 

When Hartley was asked if she would continue to check the IDs of anyone she hires in adult videos were 2257 to be abolished, she replied, “Oh, of course.”

The subject of child pornography also came up when Baylson was questioning Hartley. “For me, child pornography is evidence of a crime,” Hartley told the judge. Child pornography, Hartley said, is not adult entertainment, but illegal material that adult entertainment companies want no part of.

As Hartley’s career progressed, she took more and more of a sex education focus—and 2257, Hartley testified today, has the effect of discouraging sexual awareness because it discourages and punishes sexual expression. Hartley testified: “Ignorance does not help anybody .... It is important that we keep sexual speech legal even when it makes us uncomfortable.”

Murray asked Hartley if she believed that she is exercising her First Amendment rights by participating in adult films. She responded: “Absolutely. Sexuality is a very important part of most people’s lives.” But she went on to say: “Our culture is so erotophobic. We’re so scared of sex.”

Murray also asked Hartley if 2257 does anything to prevent minors from being used in porn. “In my opinion,” Hartley responded, “absolutely not.”

Another thing Murray asked Hartley was whether or not minors trying to pass themselves off as adults in order to appear in porn legally becomes a “serious problem” for the industry.

Hartley responded: “Serious, absolutely not.” More than once during her testimony, Hartley said that age verification and conscientiously checking valid photo IDs is enough to keep minors from appearing in adult films — and that because photo IDs are checked and ages are routinely verified in the adult industry, the record-keeping and cross-referencing demands of 2257 are not needed.

The 61-year-old David Levingston, during his testimony, said that he finds 2257-A to be burdensome because it includes simulated erotic acts. When Murray asked Levingston (a former photojournalist who worked at daily newspapers in the past) how 2257-A has affected his work as a photographer, Levingston said that he removed one of his photos from his website because he feared that the photo could be misinterpreted as sadomasochistic. Levingston said that he did not consider the photo sadomasochistic, but was concerned that others might see it that way — and therefore, it might be considered a violation of 2257-A. Levingston testified that by removing the photo from his website, he was “erring on the side of caution.”

Levingston said that because complying with 2257-A is difficult to understand and difficult to abide by, it is best to simply not use any photos that might require an FBI inspection. Levingston testified: “I don’t understand how the records are supposed to be maintained .... I’m not willing to be subject to warrantless searches. I can’t be available 20 hours a week ... to be available for those inspections.”

Levingston testified, “I’m very concerned about crossing the line into 2257-A. That was not a concern before 2009.” He also said, “I’ve been very careful to avoid images that could apply to 2257-A.”

Murray asked Levingston why he wouldn’t want to hire a third party record-keeper for 2257-related matters, and Levingston replied: “For one thing, it would cost money.”

Tom Hymes, during his testimony today, reiterated some of the things he said during his testimony yesterday. When Hymes was cross-examined by Wyer today, he told her that he publishes a website called The Daily Babylon and that he is refraining from using some erotic photos he would like to use because of his 2257 concerns. “There is a high likelihood that the material I would like to post” would “trigger 2257,” Hymes told Wyer today.

Wyer asked Hymes for some explanation of what it means to be a primary producer of erotic content. Hymes said, “If I’m taking my own photographs and it includes 2257-triggering content, I’m a primary producer.” Hymes, describing the role of photography on his site, testified, “I take photographs, and the written word is a subsidiary to the photographs. That can easily happen.”

Hymes, reflecting on his fears of a possible 2257 violation with his site, said: “I’m a scrupulously law-abiding individual…..I’m (not willing to) put myself, my family at risk.”

Murray, on redirect, asked Hymes to state his position on adult companies checking the IDs of performers for age-verification purposes; Hymes responded that he is fine with checking IDs and encourages that practice. But when Murray asked Hymes whether or not he thought that 2257 regulations do anything to make it even more unlikely that minors will be kept out of adult material, Hymes said, “No, I don’t believe that they do.”  2257, Hymes testified, does nothing to help adult companies keep minors out of sexually explicit content and only acts as an unnecessary burden for the companies.

Ever since the trial in Free Speech Coalition vs. Holder began on Monday, the plaintiffs have set out to demonstrate that 2257 has a chilling effect on erotic speech.

Today, Murray made that point by citing examples of Hymes and Levingston refraining from publishing photos they would like to publish.

Tuesday, Murray made that point  with his questioning of erotic photographer David Steinberg (who testified that he had been hired to edit an English-language version of the Norwegian monthly Cupido but is fearful of doing so because the photos in Cupido are taken in European countries that don’t have the demands of 2257). And Tuesday, sexologist Carol Queen, who has a masturbation-oriented event called the Masturbatathon, testified that she would like to film the event for future viewing  but is fearful of doing so because of 2257.

Between the testimony of Queen and Steinberg on Tuesday, Levingston today, and Hymes both Tuesday and today, Murray repeatedly set out to demonstrate the hardships imposed by 2257.

All of the questioning of witnesses from the plaintiff’s side of the case has come from Murray; Murray’s colleague Lorraine Baumgartner has been present with Murray in Baylson’s courtroom throughout the trial, but Murray has been the only one questioning the witnesses. Meanwhile, the attorneys for the U.S. Justice Department have taken turns cross-examining the plaintiff’s witnesses.

Yesterday, Murray said that he was confident that the plaintiffs would be able to rest their case today, but it turns out that there will be additional testimony on behalf of the plaintiffs. Erotic photographer Barbara Nitke is scheduled to testify this Friday, June 7 when the court reconvenes in Judge Baylson’s courtroom.

And one of the witnesses the opposing side plans to present as a witness is anti-porn feminist Gail Dines (who some feminists consider to be diametrically opposed to a sex-positive feminist such as Betty Dodson, who testified at the trial yesterday along with her business partner Carlin Ross). Dines was born in Manchester, England but now lives in the United States, where she is a professor of of sociology and women’s studies at Wheelock College in Boston. Dines is the author of the anti-porn book "Pornland: How Porn Has Hijacked Our Sexuality" and was a founding member of the anti-porn organization Stop Porn Culture. Because of her anti-porn 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).

New York City-based Nitke, who presently specializes in fetish photography, spent much of the 1980s documenting non-BDSM porn with her photographs (her recent photo book is titled "American Ecstasy"). Nitke has a history of taking legal action against legislation that she believes is detrimental to sexual freedom; in 2001, Nitke and the National Coalition for Sexual Freedom (an organization specializing in BDSM rights) filed a lawsuit that challenged the constitutionality of the Communications Decency Act.

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 decided that Nitke and NCSF had presented insufficient evidence that the Communications Decency Act chilled free speech. Now, in Free Speech Coalition vs. Holder, Nitke is scheduled to testify on behalf of plaintiffs alleging that a different federal law, 2257, is having a chilling effect on free speech. 

Since the trial commenced on Monday, Judge Baylson and the attorneys for the Justice Department have more than once noted that there have been no 2257-related FBI inspections in six years. However, the plaintiffs fear that at some point in the future, 2257-related searches could resume — and with their lawsuit in this case, the plaintiffs are trying to avoid that possibility.  The plaintiffs have said that the fact that 2257 inspections have not occurred since President Obama took office does not mean that they won’t resume at some point (possibly under a future president).

After today’s three witnesses for the plaintiffs had testified—first Hymes, then Hartley, then Levingston—the government called to the stand Adriana Vecchio, who had analyzed the ages of the people whose IDs had been checked when they appeared in erotic material from Vivid Entertainment, the North Carolina-based Sinclair Institute (whose office manger, Dian Wilson, testified during the first two days of the trial) and others. Vecchio said that with Sinclair, 79 percent of the IDs were of people who were 26 or older. With Vivid, she said, 60 percent of them were 26 or older.

Vecchio’s brief testimony was followed by some of Baylson’s thoughts on Free Speech Coalition vs. Eric Holder and how the case might ultimately be resolved. Baylson, addressing attorneys for both the plaintiffs and the defendants in the case, said he hoped that the opposing sides would be able to reach some type of mutual agreement.

Baylson said that the plaintiffs are facing an “uphill battle” in their efforts to prove that 2257 is unconstitutional, but he said that he understands why the plaintiffs find some of the legislation to be “burdensome.” Baylson described the legislation as “difficult for a lay person to understand” and offered one possible solution: perhaps 2257 could continue, but with the elements of it that the plaintiffs find the most burdensome removed. Baylson said that if adult companies find 2257 inspections without advanced notice to be unreasonable, perhaps the defendants could agree to “reasonable advance notice searches.”

Baylson said: “I am not talking about an amendment to this statute. I’m talking about the Justice Department changing he regulation.”

Porn, Baylson said, “has become such a part of everyday life for so many people” that there must be some type of legal resolution in Free Speech Coalition vs. Eric Holder. Baylson said that “the reality, for better or worse” is that adult entertainment is a huge industry and that many Americans are consuming the material.

Baylson also reflected on whether or not Free Speech Coalition vs. Eric Holder may ultimately be decided by the United States Supreme Court: “I don’t know how this is going to turn out. Obviously, there is going to be another appeal. Maybe the Supreme Court will take this case, maybe they won’t.”

After expressing his thoughts on the case, the judge adjourned for the day and said that the case will reconvene in his courtroom on Friday at 9:15 a.m. (EDT).