Date: 7-23-02
To: Honorable Mayor and
Members of the City Council

From: Councilmember Dona Spring

Subject:       PROPOSED Regulation of “indecent” material on cable access

RECOMMENDATION: That the Council not adopt the proposed measure to regulate "indecent" material on Berkeley Community Cable TV due to constitutional and other problems.


Attached is a legal opinion from James B. Chanin, an attorney who argues that the proposed ordinance regulating "Indecent Programming on Peg Channels" is unconstitutional. Mr. Chanin had a good track record on constitutional issues regarding free speech and the First Amendment. Mr. Chanin and the ACLU successfully sued the City of Berkeley over its restrictions on panhandling which the court ruled was unconstitutional. In addition, Mr. Chanin successfully represented Spectator newspaper against the City of Alameda in a first amendment case regarding explicit sexual material. He said he may be interested in pursuing a suit against the City of Berkeley should of the Council proceed with the proposed ordinance.

After reading Mr. Chanin’s legal analysis, I have come to the following conclusions:

1. While I support  a parents’ right to decide what kind of adult materials their children are exposed to, there is also a responsibility for parents to use reasonable means available to keep those materials from them. In the particular case of Berkeley’s community access channel less restrictive remedies are available to parents who want to restrict their children from viewing sexually explicit depictions on cable TV. For example, the cable television provider makes boxes available that can go on one or more televisions in the households that can block off Channel 25 on the particular television set that is viewed by children. In these households, Channel 25 could be available on a television that is supervised by an adult after 10 PM. In making First Amendment restrictions, the least restrictive remedy must be applied. It is reasonable to expect that parents take some responsibility for not allowing their children to view materials they consider unsuitable.

2. HBO and Showtime use 10 PM as a guideline for viewing adult materials. These commercial channels undoubtedly base that guideline on the FCC guideline of 10 PM. For the City to change that guideline means that the new time restrictions will have to be enforced by the City instead of the District Attorney. It will also make that restriction harder to legally defend since it is not based on FCC guidelines or standard commercial practices. This time could be viewed as being more restrictive than if necessary in curtailing First Amendment rights.

3. The proposed ordinance regulating "indecent" material has not shown any evidence substantiating the claim that harm has been caused to minors and to the efficacy of the proposed legislation. In fact, according to Brian Scott, the executive director of BCM only approximately 15 calls/e-mails have been logged complaining about the "in indecent" material being shown after 10 PM. Half of those have been from one individual. In contrast, there have been over 100 e-mails and calls from members of the public who object to the further restriction of programming considered to be adult in nature.

4. There is no analysis of what effect this ordinance will have on BCM and the functioning of our public access channels which are on a shoestring budget. If this ordinance gets passed and producers defy it, it will take a great deal of staff time to review the tapes and make  decisions. Who will make the decision? Will it the left up to one person to decide? (Ultimately if someone appeals it will be the City Attorney.) The ordinance provides that the City (albeit the City Attorney) will make a decision as to whether the BCM director is making the proper decisions. On the other hand, there is no means for a producer to contest what the BCM director decides. I would think that this puts the BCM director in a very awkward position vis-a-vis the spirit of community access.

The City Council will have to pay for the additional staff necessary to watch the videotapes and pay for other people to watch videos to make a determination. This could be up to an additional $100,000. What is the City Council going to cut to pay for implementation of this ordinance? How will the City attorney investigate every complaint comes in regarding the decisions being made by the BCM director? How much of her time is going to be spent on this endeavor? If the City Council decides to move ahead with this ordinance it should first refer the annual cost to the budget process before implementation.

I think it is much preferable not to create a political process regarding material shown on cable access but, leave it to the process that now exists. (It has not been demonstrated that the process is broken.) Currently the process is that when a complaint comes in, the director of BCM tells the complaintant to document the date, time, the title of the program and send it to him. That information is turned over to the District Attorney who makes the decision whether to prosecute. If the City passes this ordinance, it will fall to the City to enforce it, and take it out of the District Attorney's purview.

The City is on shaky legal grounds. The City Attorney's is basing her proposed ordinance on the Seattle ordinance. The fact that Seattle ordinance has not been challenged to date does not mean the Berkeley (the so called birth place of free speech) ordinance will withstand legal challenge. If it is challenged and is upheld as unconstitutional, there is a risk that even the after 10 PM time will not stand. The FCC 10 PM time is purely a voluntary guideline because in 1984 it was struck down by the U.S. Supreme Court. The Council by setting a time that if more restrictive than the FCC regulation of 10 PM creates more of a legal risk. The FCC undoubtedly chose 10 PM (not 11 PM or 12 PM) because 10 PM is a standard bedtime for minors and better met the challenge of the least restrictive curtailing of First Amendment rights. To keep it into perspective, much more adult material is available any time of the day on the Internet, and the conservative Supreme Court shot down Attorney General Ashcroft’s attempt to censor it. Typing a three letter word into a computer is just about is easy as changing the Channel on the TV remote. How seriously will this ordinance protect minors who want to view "adult materials"?

Currently, the voluntary system is working in that producers are showing material judged to be adult in nature after 10 PM. There are only been several complaints. There are other reasonable remedies for dealing with the complaints. 


CONTACT PERSON: Councilmember Dona Spring 981 7140

James Chanin, Attorney at Law
3050 Shattuck Ave.
Berkeley, CA 94705
July 9, 2002

The Honorable Mayor and Members of the City Council
City of Berkeley
2180 Milvia Street
Berkeley, California 94704

Re: Ordinance Regarding AIndecent Programming on Peg Channels@

Dear Honorable Mayor and Members of the City Council:

I am writing to strongly urge you to not vote in favor of the proposed ordinance regarding AIndecent Programming on Peg Channels.@ The proposed ordinance is clearly unconstitutional under prior United States Supreme Court decisions and constitutes an heretofore unprecedented attempt by the City of Berkeley to regulate the content of speech which is not illegal and which is protected under the First Amendment of the United States Constitution.

Although the City Attorney relies on the Supreme Court decision in Ashcroft v. ACLU in her memo to the Council recommending adoption of this ordinance, the City Attorney ignores the fact that 1) the Supreme Court in Ashcroft did not rule in favor of the Government on the constitutionality of the internet porn law and, instead, allowed the preliminary injunction against enforcement of the law to remain in place pending the resolution of the merits of the plaintiffs= claims that the law is unconstitutionally overbroad and fails to meet strict scrutiny; and 2) two prior Supreme Court decisions on the issue of regulating adult material on cable television have struck down laws similar to the proposed ordinance, concluding that they constituted overbroad attempts to regulate the content of protected speech under the First Amendment. See, e.g., Denver Area Educ. Telcoms. Consortium v. FCC, 518 U.S. 727 (1996) and United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000).

In Denver Area Educ. Telcoms, the Supreme Court held that a law regulating Aindecent@ material on public access cable television broadcasts was unconstitutional because of a lack of evidence substantiating the claimed harm being caused to minors and the efficacy of the proposed legislation. The Court held:

AIn the absence of a factual basis substantiating the harm and the efficacy of its proposed cure, we cannot assume that the harm exists or that the regulation redresses it. See HR3B, Turner, 512 U.S. at 664-665. The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships among local community and nonprofit supervising boards and access managers, which relationships are established through municipal law, regulation, and contract. In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear. At the same time, given present supervisory mechanisms, the need for this particular provision, aimed directly at public access channels, is not obvious. Having carefully reviewed the legislative history of the Act, the proceedings before the FCC, the record below, and the submissions of the parties and amici here, we conclude that the Government cannot sustain its burden of showing that '' 10(c) is necessary to protect children or that it is appropriately tailored to secure that end. See, e. g., Columbia Broadcasting, 412 U.S. at 127; League of Women Voters, 468 U.S. at 398-399; Sable, 492 U.S. at 126. Consequently, we find that this third provision violates the First Amendment.@

Similarly, in the instant case, the City of Berkeley has failed to show any factual bases for this proposed ordinance or that the proposed ordinance will, in fact, redress any such harm. For example, there has been no evidence presented showing the number of households who receive the cable broadcasts who have minors who have been exposed to any programming which allegedly would violate the Aoffensive to minors@ standard set forth in the ordinance. Nor has there been any evidence presented that the households where minors have been exposed to this programming would have any problem with having the potentially offensive material blocked. As noted above, the Supreme Court struck down a similar law in the Denver case despite evidence developed in the legislative history of the statute as well as before the Federal Communications Commission. 

In United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000), the Supreme Court held that it was unconstitutional to require that the Playboy channel fully scramble its adult programming (which would sometimes Ableed@ through and be viewed by children) or limit their transmissions because it found that customers could order signal blocking on a household-by-household basis and that constituted an effective, less restrictive alternative to preventing minors from being exposed to Aindecent@ broadcast material.

In the Playboy case, the Supreme Court applied strict scrutiny to the statute because it was a content-based speech restriction. The Supreme Court in that case held that the United States did not meet its burden of showing that there was a pervasive, nationwide problem of signal bleeding nor sufficient evidence that a well-promoted blocking provision would inform parents about signal bleed and about their rights to have the bleed blocked. Since the Government failed to show that the statute was the least restrictive means of protecting minors from exposure to the material, the Supreme Court held that the trial court did not err in holding the statute violative of the First Amendment.

Similarly, in the instant case, the City cannot meet its burden of showing that there is a pervasive problem with minors being exposed to the alleged Aindecent@ material nor that a well-promoted blocking provision would not adequately protect minors in households where the parents wish to prevent their access to this material.

In addition to the fact that the Supreme Court has previously struck down two federal laws aimed at addressing the exposure of minors to Aindecent@, but not illegally, obscene material, there are a number of other reasons why the Berkeley ordinance is unlikely to pass Astrict scrutiny@ and will likely be found to be unconstitutional under the First Amendment.

For example, in April 2002, just a month before deciding the Ashcroft v. ACLU case, the Supreme Court ruled that a federal statute prohibiting Avirtual child pornography@ to be unconstitutional because it was overbroad and failed to satisfy the strict scrutiny analysis. In that case, while recognizing the important governmental interest in protecting children from being victimized by pedophiles, the Court found that the statute prohibited cartoons and computer generated depictions of under-aged minors having sex and would have outlawed such movies as American Beauty and Traffic which portrayed teenagers involved in sexual relationships. 
In striking down the law as an overbroad restriction on the First Amendment, the Court noted: 

AOur society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 419, 16 L. Ed. 2d 1, 86 S. Ct. 975 (1966) (plurality opinion) ("The social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness").

In addition, the ordinance is likely to be deemed void because of its vagueness. The ordinance does not clearly set forth either the procedures for determining whether a particular program violates the ordinance, nor does it clearly set forth the standards for the Agrievance@ procedure or any penalties for the violation of the ordinance. The ordinance also vests virtually unlimited discretion in the PEG Manager for determining whether a violation has occurred, thereby opening the door for arbitrary and capricious decision-making which can itself lead to Equal Protection, Due Process and other constitutional claims by producers unfairly singled out for enforcement activity.

The ordinance also allows for community members to lodge complaints whenever a program does not suit their individual tastes or sensibilities. Rather than subjecting the broadcast material to a ABerkeley community standard as a whole,@ the ordinance subjects individual producers of the broadcasts to the very real possibility that whatever they produce will be subject to a grievance hearing based on the individual tastes of community members. Since those complaints will not be forwarded to the City of Berkeley for action but, instead, to individual PEG managers, the likelihood that they will be subject to arbitrary, capricious and unequal treatment appears to be certain. As a result, producers will likely be forced to self-censor their productions in fear of being hauled into a grievance procedure at their own expense whenever someone in the community is offended by their production.

It also appears that the ordinance would fail the Astrict scrutiny@ test because there is no evidence that minors are any less likely to see the Aindecent@ programming if it appears after midnight instead of 10:00 p.m. If children are being exposed to Aindecent@ programming at 10:00 p.m., the question arises as to what kind of supervision the parents are giving those children and whether there would be any better supervision between the hours of midnight and six a.m. The statute would, therefore, substantially restrict the rights of adults to view Aindecent,@ but legal and protected material simply because parents do not wish to be bothered with supervising what their children watch on household television screens between the hours of 10:00 p.m. and midnight or because they do not wish to be bothered with blocking the channels from their cable system.

The City Attorney=s memorandum also ignores an important distinction between the proposed ordinance in this case and the internet porn statute in the Ashcroft v. ACLU decision. In Ashcroft, the statute regulated only commercial internet sites and did not purport to regulate non-commercial sites. In the instant case, the Berkeley ordinance, by its very nature, attempts to limit the rights of its citizens to produce and view lawful and protected material on public access stations which is non-commercial in nature. As such, it constitutes an unprecedented attempt to limit the free speech rights of non-commercial producers, broadcasters, and artists as well as its adult citizens to access such material if they so desire.

In her memorandum, the City Attorney states that AIt is unlikely that the implementation of this ordinance will result in any increased costs.@ I would beg to differ, however, because I believe it is extremely likely that even if the City survives a facial challenge to the constitutionality of the ordinance (which I strongly doubt), it is likely to be subjected to civil suits by individual producers who are singled out for enforcement of this ordinance or whose productions do not meet the Aindecent to minors@ standard and are forced to litigate their right to broadcast their material in Court. Prevailing parties in such suits will be entitled to recover their attorneys= fees and costs against the City of Berkeley under both state and federal law. 

There is no legitimate reason why the City of Berkeley should adopt this unprecedented attempt to regulate the free speech rights of its citizens. By doing so, the City will be restricting the rights of its adult citizens to produce and access legal material. The adoption of this clearly unconstitutional ordinance will certainly lead to expensive and time consuming litigation when the City could better use its resources for educating parents and teachers about the currently available means for restricting access of their children to Aindecent@ material by way of blocking channels, television timer devices, channel blocking on individual television units, parental supervision and other less restrictive alternatives. Therefore, I strongly urge you to reject this proposed ordinance and that it not be adopted.            



Back to Censorship Home

Back to FMUP home