We Love to Watch
Who's to take the blame for sex on your T.V. screen
By Kit Roane
September 1991; pages 10-11; Volume 3, No. 1
On July 30th the Austin Cable Commission met to decide the fate of Access Television (ACTV), a shaky prospect since Scott Spurlock's Dull-A-Vision hit the airwaves last spring. Spurlock had, in February, synchronized the sound recordings of Skinny Puppy and M.C. Hammer to coincide with scenes of an aborted fetus, a suicide, a McDonalds commercial and clips from an erotic film. Pushing the normal bounds of free expression, the video repeatedly warned the audience of its graphic content, and asked people to call in and vote for or against its airing. According to Spurlock, 30 or 40 people called in to the program, and only one asked that it be taken off the air.
At the July hearing, both the city staff and the American Civil Liberties Union (ACLU) - defending Access TV - plead their cases before the Cable Commission's Board; the Board would decide whether ACTV could continue to function as an open public forum or succumb to City censorship. On September 11, the Cable Commission will come to a decision; it will decide whether to place ACTV program content under city supervision or (probably) drop the City staff's recommendations and affirm the independence of the station. In either case, ACTV will certainly feel the heat for some time to come. As the City manager of Cable and Regulatory Affairs Jerold Lambert points out, "the price for freedom is eternal vigilance."
Now that Texas Student Television (TSTV) has joined Access on the Austin cable airwaves, the Commission's decision affects both student and community producers. UT already controls student media production through the Texas Student Publication (TSP) Board, but in this case TSP must adhere to policies outlined in the city's contract with Access.
Under the present interpretation of Access guidelines, and in accordance with state and national law, the producers, not the University, would retain all legal liability for student programming. On November 9, 1990, the TSP board noted with concern that UT would have to remain content neutral in its governing of the station under current city policy, but recommended that the station be approved anyway.
If the City staff succeeds in convincing the Austin Cable Commission that the producer does not retain liability, the University, fearing its own liability, will have a legal justification for pulling its support from TSTV or strengthening the role of the broadcast supervisor. In the case of KTSB (student radio) the TSP-appointed broadcast supervisor, who would be the same person as at TSTV, has repeatedly sought to influence artistic and editorial content. (See Polemicist, February 1991)
Tellingly, in its discussion of print media, TSP also recommended that any new UT student publication should be closely watched, in order "to avoid libel and liability ... TSP would need a measure of control over review of the publication's content and over selection of 'qualified editors'."
The City is Watching for You
At the Cable Commission hearing in July, the City attempted to gain control over access programming to protect city viewers (presumably mostly children and churchgoers) from obscene language or images of the naked human body. City staff claims the City's management contract with ACTV gives it a controlling interest in the project. In effect, the City provides access through the funds received from the Cable Company, and therefore can "make content restrictions as it sees fit." In addition, since the channels are managed by ACTV, Inc. for the City of Austin, city staff argues that the City can be held liable for 'obscene' programming that might air on these channels.
Interpreting its contract with ACTV Inc. in this way, Austin's legal department pushed the commission to approve the following obscenity clause for producers' contracts: "I (the producer) know that my program may be viewed by minors and that it is in compliance with the State Penal Code Section 43.24." (This is the section of the Penal Code which deals expressly with exposure of harmful material to minors.)
They also wished to include a "time-segregation" clause into the Rules and Procedures for producers, moving all programming the city lawyers consider obscene to late-night spots, between 12:00am and 5:30am. In a recent federal court case, Carlin Communications v. FCC the court struck down a similar time-segregation plan for Dial-a-Porn.
The city staff's first claim - that "it can made content restrictions as it sees fit" - changes the city's longstanding interpretation of its role as a provider of access television.
As then-Assistant City Attorney, James R. Riggs stated on December 8, 1982, "Denial of transmission and display of protected speech entails potential civil liabilities ... Since the City has in public access a public forum, it must be 'content neutral'." Less than four years ago Iris Jones, then-Deputy Assistant Attorney and today the top City Attorney, concurred. "ACTV is an independent contractor for the city of Austin, not an agent," she said. "To avoid possible misrepresentation and the consequences (liability) ... ACTV must be perceived as independent of the City of Austin." ACTV Inc. is an independent contractor, and according to the Federal Cable Act the City cannot be held liable for the content of programming.
The ACLU, noting the City of Austin's longstanding position on content neutrality, concentrated on the Federal Cable Act's First Amendment protections. J. Patrick Wiseman, an Austin lawyer testifying for the ACLU, pointed out that the Act states "a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity." According to the ACLU, the City has no more right to restrict speech on ACTV than it does in a public park. Other cities which have tried to restrict public access lost their cases, often paying substantial fees for their misguided attempt. (City of Miami, Missouri Knights v. Kansas City, Wilkinson v. Jones, Cruz v. Fere)
In addition, under section 639 of the Federal Cable Act, "cable operators cannot be held criminally or civilly liable for material transmitted over public, educational, or governmental access channels, or leased channels." As long as the City kept its hands off programming, the producer of an offensive show would bear full liability; only by placing content restrictions on the channels would the City become liable for the program content.
The inclusion of a specific section of the Texas Penal Code within the producer's contract complicates the City's position still more. The City basically said that all programs aired on access must be censored to a level appropriate to juvenile consumption. If ACTV's executive manager judged a program to be inappropriate, it would be immediately pulled from the air and its producer suspended. So much for the First Amendment!
The City's action also violates rules set up by the Supreme Court in 1965 (Freedman v. Maryland) which in a very limited sense would allow for some censorship of speech. The guidelines that all censorship regimens must follow are: "a) any restraint on the display of disputed material must be for a 'specified brief period' and the sole purpose of the restraint must be to 'preserve the status quo' while the government goes to court; b) the government must either race to court to have a judge rule on the legality of the restraint or must permit the work to be shown; c) the government has the burden of proving the work is not protected by the constitution."
The City's proposed amendment fails all three of these tests; there is no time limit established for evaluating the program, no requirement that the City go to court to have a neutral judge decide the case, and the city is not forced to prove that the work should not be rebroadcast.
In addition, the City's action is redundant. Currently, every producer falls under the jurisdiction of the Federal Cable Act and the Texas Penal code. Normally, if someone feels a producer has aired something 'obscene,' a complaint can be filed with the proper authorities (in this case the County Attorney) who can then take the case to trial.
The City's problems do not end here however. Even if the Cable Commission overturns the city staff's legal opinion and leaves the present contract intact - saving taxpayers a costly and useless legal wrangle - a trail of threats and other questionable practices remain.
When the City Staff Panics
For 15 years the City of Austin held true to its original directive, keeping a hands-off approach to Access television. Unfortunately, for reasons not wholly clear, this standard abruptly changed on February 9, 1991 at 12:20am.
Cooksey told reporters and the City Council that after returning home that day, she turned on her television and saw what she termed pornographic scenes on Scott Spurlock's show, "Dull-a-Vision." She called the ACTV technician and had the show immediately pulled off the air. This chain of events has been refuted by several sources close to ACTV, however, including Dean Langston of the Cable Commission.
According to Langston, a man claiming to be a city attorney called Lynn Cooksey that night and demanded that she pull the program immediately or he would pull the plug on ACTV entirely. Cooksey, in a later interview, denied both accounts, stating that a personal friend who also happened to be an expert in first amendment rights had called her and advised her that the scenes being cablecast by Spurlock were obscene, and that the show should be pulled off the air. Cooksey refused to reveal the name of this mysterious expert to Polemicist.
On February 12th, Lambert sent copies of Spurlock's cablecast to both Capital Records and McDonalds Corporation, suggesting that they might want to pursue charges of copyright violation against Spurlock. Spurlock, of course, had been suspended for violation of obscenity laws, not copyright infringement. Rarely does the City leap in, as in this case, to pursue a potential third-party grievance. On February 15, Capitol records wrote Lambert to thank him for his information, enclosed a cease and desist order for Spurlock, and stated that the City would be held liable for further copyright infringement.
In the midst of the ruckus, Travis County Attorney General Ken Oden convened a Grand Jury to hear testimony from Camille Barnett, Iris Jones and Lynn Cooksey on the issue. The Grand Jury, after the hearing, sent letters on March 11 to all City Council members, Cable Commission members, and members of the ACTV, Inc. Board informing them that the City and ACTV, Inc. would have to accept liability for programming in the future.
According to the Grand Jury's letter, the local public access channel which aired Spurlock's video was "under your (the City of Austin) control or operation." It further stated, "Under the Texas Penal Code, we (the Grand Jury) are impeded in holding the producers accountable so long as a branch of the government, which has the authority to exercise control ... has, through its actions and policies, allowed the sexually explicit programming to occur and reoccur ... Neither the City of Austin nor ACTV can avoid criminal liability for consciously disregarding the use of the cable channel to violate Article 4324," despite the disclaimer independent producers must sign. In particular, the Grand Jury seemed particularly offended that sexually explicit programming could "occur and re-occur," although no other instances were sited.
Although no one else was present at the closed hearing, Cable Commissioner Langston, argued that the witnesses "could not have possibly given accurate statements about the way Access is governed ... It is an old power play where you control the options presented to a certain group of people (the Grand Jury) and therefore control their reactions."
Eventually, the ACTV Board of Directors voted to rescind ACTV manager Lynn Cooksey's order, reinstating Spurlock to full privileges as an access producer. ACTV Boardmember, Maria Rocha noted that under Texas obscenity law, it was not up to one group or one person to decide if a program violated the penal code, but that a public hearing must decide the "community standard." The Board also said any action on copyright infringement required an aggrieved party to come forward directly. Because neither McDonalds nor Capitol records had contacted the Board, the copyright infringement clause of the producers contract could not be enforced.
In response to the ACTV board vote, Jerold Lambert wrote a confidential memo to Marilyn J. Fox, the Assistant Director of the Financial Services Department for the City. He there offered the opinion that ACTV was now in violation of its contract with the City and that their violation gave rise to an "increasingly high level of city exposure to liability."
He further stated his belief that the ACTV Board was "thumbing their collective noses at the Cable Commission" and that the Board's irresponsible behavior was "rooted in philosophical differences that have eroded their desire to fully comply with the material parts of their contract." He also decided the high turnover in management at ACTV suggested "an organization out of synch with itself ... an organization ripe for takeover." Lambert requested the City to allow him to "call ACTV on the carpet for their actions."
Cable Commissioner, Marianne Wizard, alleged in a special press conference, however, that the City Attorney and the City Manager had pressured the Grand Jury into threatening the City Council, the Cable Commissioners, and the ACTV Board.
With a renewed sense of vigor, Assistant City Manager Byron Marshal, informed Maria Rocha, acting president of the ACTV Board, that the reinstatement of Spurlock pursuant of the pending copyright decision was "a material breach of ACTV's contract with the city." Under pressure, the ACTV Board rescinded its earlier decision to allow Spurlock to continue broadcasting pending resolution of his case, and suspended him for 90 days.
Unfortunately, this did not placate Lambert. On March 19th, ACTV was told in a letter from Byron Marshall, the Assistant City Attorney, that further enforcement should be consistent and that "...should ACTV fail to enforce further violations in a timely manner, we (the City) will suspend further payment to ACTV." Now that ACTV, Inc. is under Brenda Trainer's micro-management, ACTV's budget must be renewed annually.
That same day, Marshal penned a document containing recommendations for changes in the rules and procedures regarding content (obscenity). This letter was sent to Maria Rocha, the Cable Commission, and the ACTV Board of directors. In the letter he states his rational for these changes as follows: 1. "obscenity is not protected speech." 2. "the city has no mandate to subsidize free speech, protected or otherwise."
The document's final resolution states that "the Cable Commission is ... directed to approve (these recommendations) no later than March 28, 1991." They are also "directed to waive the thirty day 'effective date' requirement of Section 111 of the Rules and Procedures ... and implement said amendments immediately upon approval by the Cable Commission." It is confusing how one can 'recommend' and 'direct' at the same time. Therefore, besides negating any due process for acceptance of these amendments, the resolution clearly attempts to bully the Cable Commission into submission.
The City has clearly left us, as citizens, exposed to a great deal of liability. Besides pulling the City into a potentially disastrous and costly legal battle, City Council and other representative bodies have been threatened with indictment by a Travis County Grand Jury and have irreparably harmed the City's relationship with its independent sub-contractor, ACTV , Inc.
Jerry Lambert was correct in at least one assumption: that someone must "stop the tail that's wagging the dog." Unfortunately, he misunderstood his and his cohorts position in the analogy. He does not represent the body of the beast; we do. He and his accomplices are but the wagging appendage; an appendage which has truly left us exposed to some frightening liabilities.
Students interested in the outcome of the final hearing, should show up at the Cable Commission September 11th and make your position known. The broadcast supervisor at KTSB might end up being your local campus television censor, if the new interpretation of the contract with ACTV, Inc. is upheld.