Berkeley Daily Planet
Edition Date: Thursday, February 21, 2002

B-TV reveals bare essentials of the first amendment
By Guy Poole Special to the Daily Planet (02-21-02)

Two programs on BTV channel 25 depicting "sexually explicit" material has sparked a free speech debate that may in fact put some of the channel's funding in jeopardy.

"Unlimited Possibilities" and the "Dr. Susan Block Show" both contain the questionable material, and Frank Moore, the programs' producer said the shows are "on the chopping block" because of citizen complaints.

At Tuesday's City Council meeting Councilmember Betty Olds asked that complaints made by Berkeley resident Charles Haltman regarding objectionable material shown on the publicly run station be discussed and dealt with as soon as possible.

Moore said he is protected by a 1996 U.S. Supreme Court ruling that said public access programming is protected free speech and the safe harbor for adult material is between 10 p.m. and 6 a.m. Last January the board of directors of Berkeley Community Media voted to restrict "sexually explicit" shows to air between 2 and 4 a.m.

The restriction was ordered because of citizen complaints, Moore said. He also said that the time slot restriction censors his right to free speech, by virtually eliminating his audience.

Berkeley Community Media Executive Director Brian Scott, said he was assigned the task of watching tapes of both shows to determine if they contained "obscene or sexually explicit material."

Scott said neither shows contained such material.

At Scott's recommendation the station later rescinded the time restrictions The decision to only show the programs between 2 and 4 a.m. was rescinded until the board could "inform itself of what the legal picture is," said board member Chuck Miller.

With the shows back on the air, complaints have begin to resurface.

"The first action was an effort to come up with a policy acceptable to both sides, and it turns it out it was not. The people who were offended by the content are still offended. The people who feel the show should be aired, still feel that way," Miller said.

Scott said the dilemma facing the channel is the same dilemma that always faces free speech. "The danger is that somebody complains to the city council and the program is censored. If you censor one show, you eliminate public access television," Scott said.

But the City Council is not obligated to fund BCM. And Scott fears they will vote to eliminate funding for the public access channel.

"Disgusting," Olds said. "It shouldn't be allowed to be put on so that someone could stumble on it, and I'm no prude. I would be willing to forego having that channel (25). What I saw that woman do (Susan Block) I don't think that was free speech.

"I don't think that's right and I know that the majority of the citizens feel the same way," Olds added. Scott said public access is for the community from the community and should be regulated by the community.

If somebody wants to regulate programming they do so by contacting the District Attorney's office or the FCC, in writing, with the time, date, and content of the program. This could result in an investigation of the program. Then the courts would rule if something was obscene. The problem is that nobody wants to go on record for censorship.

According to the FCC, "In 1973, the U.S. Supreme Court established the following criteria to determine whether speech is obscene: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; (2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In 1978, the Court stated that whether the work could be deemed "patently offensive" would depend on context, degree and time of broadcast.

"In 1996, the U.S. Supreme Court determined that cable operators may decline to carry indecent programming on leased access channels, but cannot exercise the same control over programming on public access channels."

Miller said he doubts the Susan Block show would be found obscene by a court. He added that one parent reported that their teen-ager saw the show, which provoked a conversation between the parent and teen-ager that proved useful.

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