PHILADELPHIA — FBI agent Stephen G. Lawrence and researcher Janis Wolak, a senior researcher at the Crimes Against Children Research Center at the University of New Hampshire, both testified during the fifth day of the trial for Free Speech Coalition vs. Eric Holder, which is being held 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.
Free Speech Coalition vs. Holder 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.
Wolok and Lawrence (who conducted 2257-related FBI inspections in 2007) were both witnesses for the Justice Department. Wolak, called to the witness stand by the Justice Department attorneys around 9:45 a.m., was presented as an anti-child pornography expert and testified that she has worked with prosecutors and law enforcement agencies extensively in conducting her research. Wolak identified herself as an expert in the area of “Internet-related child exploitation crimes.”
Wolak told the court that researchers at the Crimes Against Children Research Center typically divide the victims of child pornography into two groups (pubescent and pre-pubescent) and that the three main criminal offenses associated with child pornography are production, distribution and possession.
Wolak testified that in 2013, the most common electronic distribution method for online child pornography is “peer-to-peer networks.” Wolak said: “A peer-to-peer network is public. Anyone can join. Anyone can access files.”
Asked to clarify what a peer-to-peer network is, Wolak replied: “A peer-to-peer network is a way that people can trade electronic files with one another… It is very easy to join a peer-to-peer network .... Every peer-to-peer network has a way of searching what is available.”
Most peer-to-peer networks, Wolak said, deal with legal activities such as distributing music electronically. But such networks can also being used to disseminate illegal child pornography, she said. Other electronic methods of distributing child pornography, Wolak testified, include e-mail and “closed groups.” Wolak added: “It is also available through websites.”
Wolak said of the Crimes Against Children Research Center, “Our research is based on what law enforcement agencies tell us .... We never look at the images. That would be illegal.”
According to Wolak’s testimony, the Internet has had such an impact on the distribution of child pornography that any pre-Internet research on the subject is antiquated. Wolak testified: “Anything written in 1992 is completely out of date .... It was later in the decade that the Internet became a huge factor.”
Justice Department attorney Schwartz, when questioning Wolak, seemingly wanted to demonstrated that 2257 is a necessary tool for law enforcement because child pornography is such a serious problem. But Wolak didn’t have much to say on the subject of 2257. And unlike anti-porn feminist Gail Dines (who testified on behalf of the Justice Department on Friday), she didn’t express any overt hostility for the adult entertainment industry.
When Murray cross-examined Wolak, it didn’t take him long to show the court that Wolak — although clearly an expert on child pornography — had a limited knowledge of adult entertainment. “Your research has not been on sexually explicit material involving adults,” Murray asked. “Correct,” Wolak replied. She later said, “I’m not at all an expert in the adult pornography industry.”
Murray also used Wolak’s own research to show the court that the vast majority of people arrested for child pornography were pedophiles interested in pre-pubescent children — not people trying to illegally pass off adolescents of 16 or 17 as adults. Murray, citing Wolak’s own data, said that in 2009, 87 percent of people arrested for child pornography “had images of children 6-12” years of age.
Murray asked Wolak to define pedophilia for the court. Wolak responded: “A pedophile has an interest in pre-pubescent children.” Trying to assess the value — of lack thereof — that 2257 has had in combating child pornography, Murray asked Wolak if any of the prosecutors or law enforcements agencies she has dealt with in conducting her research havehad anything to say 2257’s effectiveness. “As far as I know, that statute has never come up,” Wolak testified.
After Wolak finishing her testimony, the court recessed for a lunch break. And after the court reconvened, Wyer called FBI agent Stephen G. Lawrence to the stand. Lawrence’s testimony began with some information about his background: he is currently a supervisory special agent for the Los Angeles division of the FBI and has been with the FBI since 1996.
In early 2007, Lawrence testified, he was put in charge of the FBI’s 2257 inspection team along with agent Charles Joyner. About five other agents on that team reported to Lawrence and Joyner. Lawrence testified: “We operated independently from the Los Angeles division ... we reported directly to headquarters.”
When Wyer asked Lawrence what type of companies were specifically targeted for 2257 inspections, he said, “We were only focused on the producers of commercial pornography.”
Wyer asked Lawrence if he targeted secondary producers of adult porn — that is, those selling porn that was made by someone else — and he replied, “Our understanding was that secondary producers would be excluded from our inspections.”
Last week, much of the testimony for the plaintiffs addressed the fears of erotic photographers, sex educators and others that they will be targeted for 2257 inspections should the FBI’s 2257 program ever be reactivated. And today, Wyer tried to discredit that testimony by asking Lawrence who the FBI’s 2257 unit targeted for inspections six years ago and why.
This afternoon, Wyer wanted to know if “galleries or museums” showing erotic depictions were targeted for 2257 inspections; Lawrence said they weren’t. Wyer asked if any book publishers who used nude photographs were inspected; Lawrence said that they weren’t. And when Wyer asked Lawrence if any dating sites were inspected, Lawrence replied, “We were focused only on pornography that had been produced for commercial sale .... Dating sites did not fit that criteria.”
During Wyer’s questioning, Lawrence was asked to give specifics about what transpired when he conducted 2257 inspections in 2007. Lawrence testified that the inspections were conducted in a matter-of-fact way and were never conducted in such a way as to be intimidating or harassing. Lawrence said: “Raid jackets were never worn .... We were in professional business attire …. We were very courteous .... We had done a lot of the work ahead of time.”
Wyer asked if Lawrence or any of the other FBI agents ever used any sort of physical force in conducting 2257 inspections in 2007. Lawrence replied: “Absolutely not ....We never, in any circumstances, forced our way in.”
Lawrence testified that adult companies targeted for 2257 inspections were told in advance that inspections would be taking place — the agents didn’t just show up out of the blue, he said.
But Lawrence said that the adult porn producers were not notified in advance exactly what adult videos they would be inspecting. Lawrence said that when the FBI’s 2257 unit was trying to determine what companies they should inspect, they would purchase adult DVDs under assumed names. Using an official FBI credit card to purchase those adult DVDs, Lawrence said, would have been counterproductive and defeated their purpose because it would have alerted the companies to what specific titles they were going to be inspecting.
Lawrence testified: “An advance notice was a notice that an inspection was going to occur. It was not an advance notice on what records were going to be inspected.”
Wyer asked Lawrence if any 2257 violations were found during inspections — and if so, what were the violations? And what actions did the FBI agents take in response to those violations? Lawrence responded that one example of a violation in 2007 was an illegible photocopy of a driver’s license. And for that type of violation, Lawrence testified, the FBI’s 2257 unit would usually give the producer a week to take care of it. Lawrence told Wyer: “We would sit down and discuss the violation that we would find ... and the producer had a week to rectify it.”
Lawrence testified that during one of the 2257 inspections, FBI agents found a photo of a female Asian performer who had appeared in an adult video and wanted to make sure she was a legal adult. Lawrence said that a Buddhist calendar agents saw during an inspection indicated that she might be under age. But when they checked her date of birth on the regular calendar — not the Buddhist calendar — they verified that the Asian model was, in fact, a legal adult under U.S. law.
“Based on my experience,” Lawrence testified, “some Asian women look younger than they are.”
During the 2257 inspections, Lawrence said, “we would take a photograph of where they stored their (2257) records. Lawrence said that with 2257, there was a segregation requirement — meaning that 2257 records had to be kept separate from a company’s other business records.
On some occasions, Lawrence testified, the FBI’s 2257 unit didn’t have a regular street address in an office building for a porn company — perhaps it was a post office box or a home address instead. Lawrence said of the inspections, “They weren’t all in what I would call normal office buildings.” And he also testified: “If we identified a post office box and could not find a
producer…..we would reach out and contact the person listed.”
When she had Lawrence on the witness stand, Wyer explained to Judge Baylson why she was discussing each individual inspection with the FBI agent. Wyer told the judge, “One thing I wanted to demonstrate was that each inspection had its own unique circumstances.”
Asked how many 2257 inspections he oversaw in 2007, Lawrence responded: “eight or nine.”
With her extensive questioning, Wyer tried to show that the porn producers targeted for 2257 inspections were not bullied or intimidated in any way. Lawrence testified, “On the inspections that I led, we never forced our way in or threatened anyone with arrest. It was a very cordial, respectful procedure.”
Lawrence did say, however, that there would have been criminal penalties had the people being inspected refused to obey any court orders had they been issued. Had they refused to cooperate during the 2257 inspections, Lawrence said, “we could get a court order — and if they failed to comply with that court order, they would be subject to arrest.”
Judge Baylson asked if any of the porn producers targeted for 2257 inspections six years ago denied him access. Lawrence replied, “No, they did not.” And did any of them express reluctance to cooperate with the inspections, the judge asked? “I do not recall anyone expressing reluctance,” Lawrence replied.
Lawrence testified that if certain adult videos were singled out for 2257 inspections, the type of terminology used in connection with that video could be a factor. Porn terminology that might have inspired 2257 inspections, Lawrence said, were phrases like “college-age babes” and “young Lolitas.”
Lawrence testified that there were “up to 1,200 producers” of adult porn in the FBI’s 2257 database in 2007 and that there were plans to expand that number back then. But 2007, Lawrence testified, also turned out to be the year in which the FBI’s 2257 inspection program was suspended and he was ordered to “cease and desist on all inspections until further notice.”
Wyer asked Lawrence if the FBI presently has any plans to reinstitute 2257 inspections. Lawrence replied: “No, I’m not aware of any discussions. I haven’t heard anything about reinstituting the 2257 program.”
Lawrence testified that when the FBI’s 2257 inspection team was deciding which companies to target for inspection, one of the things they would do was purchase adult DVDs from those companies online and make the purchase under an assumed name. And when Murray cross-examined Lawrence, he pointed out that making purchases under an assumed name is the type of the thing FBI agents typically do during criminal investigations — not simple regulatory inspections.
Murray, with his cross-examination, was trying to establish that those 2257 inspections essentially amounted to searches without search warrants.
Why didn’t Lawrence purchase those DVDs with an FBI credit card, Murray asked? Lawrence responded, “We didn’t want them to know what videos” had been chosen for inspection. Lawrence, saying that standard FBI procedures were used with 2257 procedures, said to Murray, “You’ve never worked for the FBI, sir.”
Today marked the first time during the trial — which commenced at the Byrne Courthouse over a week ago on Monday, June 3 — that both of the people testifying were witnesses for the Justice Department.
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; 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, June 7 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 being a blistering critic of 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 the anti-porn organization Stop Porn Culture. And during her testimony on Friday, 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.
Today, Schwartz was in charge of questioning Wolak for the Justice Department, while Wyer was the Justice Department attorney in charge of questioning Lawrence.
Other witnesses scheduled to testify this week include Justice Department witness Charles Joyner (who, along with Lawrence, was in charge of the FBI’s 2257 inspections unit in 2007) and the plaintiffs’ next and possibly last witness Dr. Daniel Linz (a professor at UC Santa Barbara in Santa Barbara, Calif.). Justice Department witnesses scheduled to testify on Monday, June 17, include Dr. Frank Biro and Philip Stark.
Judge 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 said that for the attorneys on both sides, Friday will be an “open session for you to be advocates for your clients.” Baylson also said that the absence of a written transcript of the trial should not hold up the adjudication process. “We’re not waiting for a written transcript of this trial to adjudicate,” Baylson said. The judge added: “This case has already been extensively briefed.”
Murray’s cross-examination of Lawrence is scheduled to continue tomorrow, June 12, when Free Speech Coalition vs. Holder reconvenes in Baylson’s courtroom at 9:15 a.m. Eastern time.
