Berkeley Daily
Planet
Edition Date: Tuesday, September 3, 2002
ACLU confronts
Berkeley
Matthew Artz Daily Planet Staff (09-03-02)
Fans of adult-oriented public access television may not have to adjust
their
bed times after all.
A City Council proposal that would permit sexually-explicit programming
on the city's two community TV stations to air only after midnight is
unconstitutional and must be dropped, said the American Civil Liberties
Union in a letter to the city last week.
Adult programming is permitted to air between 10 p.m. and 6 a.m. as is
recommended by the Federal Communications Commission and followed by nearly
every public access station in the country.
Berkeley's proposal, which would move shows later and provide screening
of programming, violates the First Amendment, wrote ACLU attorney Ann
Brick.
In trying to protect children, the law would deny adults access to constitutionally
protected programs, she said.
Instead of moving the shows to a later time, Brink wrote, Berkeley should
encourage parents to request that cable operators block the stations or
provide parents with a device that allows them to block offensive shows.
Complaints from residents about some public access shows led council to
vote 5-3 in support of stricter restrictions. The ordinance will go into
effect after a second affirmative vote scheduled for Sept. 10.
The two shows most criticized are "Frank Moore's Unlimited Possibilities"
and "The Dr. Susan Block Show." Susan Block is shown at 10:30
p.m. Fridays and features a lingerie-clad sex therapist whose guests have
included women masturbating and provocatively touching one another.
The ordinance would direct the station's operator, Berkeley Community
Media, to install a commission to judge the decency of programming when
a viewer complains.
Shows deemed to provide no literary, artistic or political merit and that
appeal only to sexual interest and offer offensive depictions of sex would
be banned until midnight. Council must approve the framework devised by
BCM for grading its programming before it can take effect.
Brink wrote that placing the burden on BCM to determine the value of its
programs would put undue pressure on the media group to curtail artistic
expression.
"This aspect of the ordinance is almost sure to chill First Amendment
expression, thereby frustrating the very purposes for which BTV was established,"
she wrote.
Brian Scott, BCM Media Director, said he would be uncomfortable as the
final arbiter of "indecency."
"As soon as we make that decision we lose the trust of the community
and people call us censors," he said, adding that if the ordinance
passed, he would ask City Council to form a commission to rule on complaints.
Scott said only two residents have complained to him, but Councilmember
Betty Olds defended the ordinance, saying that she had received eight
to 10 complaints in the past six months about the Susan Block show.
"When they bring a camera close to a women's crotch and try to insert
a disabled man's penis into a vagina - if you don't call that bad taste,
I don't know what is," she said. "[The ordinance] isn't just
[to protect] children. Other people want to view public television and
they don't want to see it there."
But Councilmember Kriss Worthington, who opposes the ordinance, said that
if Berkeley implements the most restrictive censorship policy in the state
its passage would send a message to other cities to do the same. If council
passes the ordinance, the sexually explicit shows could remain on air
until council approves a committee to judge the programming.
But an attempt to move the shows to after midnight only could embroil
the city in a lawsuit.
Frank Moore, a performance artist who includes nudity in some of his shows
said his show was not "indecent" and that if the committee found
otherwise, he would sue the city.
The ACLU has sued the city previously. In the most recent instance, the
organization was successful in making Berkeley repeal Measure O, a 1994
ballot initiative that prevented homeless from lying on sidewalks.
Contact reporter at
matt@berkeleydailyplanet.net
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