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American Civil Liberties Union
People For the American Way
The 90's Channel
Alliance for Community Media
Alliance for Communications Democracy
Free Speech Groups Challenge Cable Law's "Decency" Restrictions
"Helms Amendment" Forces Local Operators to Censor Programming
For IMMEDIATE RELEASE
February 22, 1993
WASHINGTON, DC -- A coalition of First Amendment advocates and cable
television groups filed suit today in the U.S. Court of Appeals in
Washington to challenge the constitutionality of new Federal
Communications Commission regulations that require local cable operators
to censor "indecent" programming on leased-access channels.
The lawsuits filed by the American Civil Liberties Union, People For the
American Way, the Colorado-based 90's Channel, and two cable-access-rights
organizations challenge regulations ordered by Congress in Section 10 of
the Cable Television Consumer Protection and Competition Act of 1992. In
court papers filed today, the coalition asserts that the new rules violate
the First Amendment rights of the producers and viewers of leased-access
programming by establishing a system of prior restraints on
"Indecency is a vague standard which the FCC itself has had trouble
interpreting, said John Schwartz, president of The 90's Channel, which
programs leased-access channels serving over 500,000 subscribers in six
states. "But the rules are being implemented in such a manner that our
channel can be pulled off the air permanently if we carry a single program
that is deemed to be indecent."
The challenge was filed by the ACLU; The 90's Channel; People For the
American Way; the Alliance for Community Media; and the Alliance for
Leased-access cable programming, along with public, educational and
government access ("PEG") channels, were mandated by Congress in 1984 to
provide an "electronic soapbox" for cable television and to prevent
monopolization of this powerful new telecommunications medium by the large
cable operators. Until it passed the 1992 Cable Act, Congress had
forbidden operators from exercising any kind of editorial control over
public- or leased-access programming.
But Section 10 of the new law, which includes provisions introduced by
Senators Jesse Helms of North Carolina and Wyche Fowler of Georgia,
requires cable operators to implement one of two options for restricting
"indecent" leased-access programs: They may either ban such programs
entirely, or else they must segregate them onto a single channel that is
unavailable to subscribers unless they request it in writing.
"Indecent" programming, defined by the FCC as material that"describes or
depicts sexual or excretory activities or organs in a patently offensive
manner as measured by contemporary community standards," is protected by
the First Amendment because it does not meet the legal test for
"obscenity," and because it often has serious political, literary or
artistic value. News and features dealing with issues such as gay rights,
safe sex, sexual harassment and arts censorship -- all subjects covered by
The '90s Channel -- may be sexually explicit, but are not obscene.
"We've long covered subjects such as AIDS and gay rights in a candid,
direct way, but now we may be forced to withhold some of the most valuable
material on these subjects," Schwartz said. "Censorship may literally cost
some people their lives."
The 1992 Cable Act contains somewhat similar restrictions for programming
carried on public, educational or governmental access channels. PEG
channels, which are controlled by local municipalities, will now be banned
from airing programs containing "sexually explicit conduct, or material
soliciting or promoting unlawful conduct." FCC regulations implementing
these PEG restrictions will be issued in the next few months.
"The 'indecency' restrictions of the new cable law are an unconstitutional
attempt to deprive the American people of information, ideas and
entertainment on sexual themes," said Marjorie Heins, Director of the
ACLU's Arts Censorship Project and one of the attorneys in the case. "In
its desire to protect minors from what it considers inappropriate
programming, Congress has now tried to reduce the adult American
population to viewing only what is fit for children.
"These regulations are so broad and vague that many cable operators will
feel they have to censor every program with sexual content," Heins added.
Although this is not the first time Congress has moved to prevent minors
from viewing cable programs that their parents might find objectionable,
previous efforts were not nearly as restrictive as the new law. In its
1984 cable law, Congress required operators to offer "lock boxes" which
enable parents to block their children's access to various channels.
Lock boxes have been recognized, both by Congress and the courts, to be
the "least restrictive means" available for helping parents control their
children's cable-TV viewing. Courts have ruled that the government must
employ the least restrictive means anytime it attempts to censor speech;
the new law goes far beyond that standard by inducing cable operators to
ban "indecency" entirely, or if they do not, by automatically blocking a
leased-access channel and requiring would-be viewers to request it.
Programmers themselves must identify which of their programs meet the
vague and subjective "indecency" test.
"The new cable law goes far beyond what is necessary to protect minors
from inappropriate programming, and it places unconstitutional
restrictions on speech protected by the First Amendment," said Elliot
Mincberg, counsel for People For the American Way.
"People For the American Way is strongly opposed to government censorship
in any guise." The regulations required by the Cable Act do not extend to
"premium" channels (Home Box Office, Showtime, The Playboy Channel, etc.),
or to pay-per-view services, all of which may air programs that would meet
the "indecency" standard. "This is the first time Congress has permitted
cable operators to censor speech," observed Charles Sims, a First
Amendment specialist representing The '90s Channel and the ACLU.
"Requiring operators to censor so-called 'indecent' speech on access
channels, while permitting them to cablecast identical speech on other
channels, is fundamentally unfair and serves no valid purpose."
The 90's Channel is seen on cable systems in Denver; Baltimore; Alameda,
Hacienda Heights and San Fernando Valley, California; Scottsdale, Arizona;
Vernon, Connecticut; and Oakland County, Mich.
The Alliance for Community Media is a national membership organization
dedicated to ensuring that the public has access to cable television and
other electronic media, and to promoting community uses of such media. The
Alliance for Communications Democracy helps protect the public's ability
to create and air community-access programs. Members of both organizations
include access programmers and producers. Attorneys representing the
alliances are Michael Greenberger and David Bono of Shea & Gardner, James
Horwood of Spiegel & McDiarmid, and Andrew Schwartzman of the Media Access
Project. Shea & Gardner, with the Media Access Project and Elliot
Mincberg, also represent People For the American Way. Charles Sims of
Proskauer Rose Goetz & Mendelsohn, and Marjorie Heins represent the ACLU
and The '90s Channel.
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