by Cindy Pletz, Peace InSight producer

Neal Berlin, Ann Arbor City Administrator, Tom Blessing, Assistant City Attorney, plus some Cable Communications Commission (CCC) members are trying to put free speech restrictions into Community Television Network’s policies and remove City Council from the debate. CTN, Ann Arbor’s community access cable TV station, is run by the city but not paid for by tax dollars. It is one of the first public access cable stations in the U.S., founded in 1973.

In October 2000 the CCC held a public hearing about some changes they were proposing. They include changes voted down by City Council in 1998 and vetoed by Mayor Ingrid Sheldon, plus language inserted into CTN’s Policies and Procedures which would allow the City Attorney’s office to pull alleged obscene videos. A memo to CTN producers proposed that "[p]rogram presenters will be required to fully and accurately complete all CTN forms, including the Application for Presentation". In a nutshell, this would force video presenters to censor themselves by declaring whether their video contained any vulgar language, sex, violence, nudity. The video would not be accepted for cablecast if the questions were left blank.

The proposals would also remove these debates from public discussion by elected officials, burying them in CCC meetings, decisions of the Cable Administrator, City Administrator and the City Attorney’s office.

They overturn a 1998 City Council decision that was arrived at with a lot of thoughtful discussion, throwing away a compromise we thought everyone was going to respect.

They are unconstitutional, creating government morality edicts in violation of the First Amendment.

They include language providing for the City Attorney’s office to ask that a video be pulled from cablecast and sent to the City Attorney’s office if it is alleged to be obscene or violate a local, state, or federal law. Lawyers who have seen it say those portions couldn’t be enforced. Why put them in? Why is our City Attorney’s office proposing bad law that could result in expensive lawsuits and remove citizen’s Constitutional rights?

The proposal violates the City Charter which says neither the Cable Commission, the City Administration, City Attorney’s office, City Council, or the Cable Company may censor videos on CTN.

It violates the city Cable Communications Commission’s Standing Rules giving the Commission final authority to hear charges of censorship.

The current policy is "voluntary disclosure", where the Application for Presentation asks that you disclose any potentially indecent material so it can be scheduled after 9 p.m. any night of the week. There is a lot of leeway depending on the content; if your show is about HIV/AIDS, breast cancer, or a news show containing war violence, for example, your video wouldn’t necessarily be considered "mature only". If this were mandatory it could be enforced literally by staff in the future if city administrators decide to do so, with the excuse that the rules have to be applied fairly to everyone.

In the past, I’ve been proud of how CTN staff have handled citizen complaints about shows like Peace InSight’s footage of ACT UP doing an AIDS prevention skit at the art fair, putting a condom on a broom handle using language you’d expect when talking about sex, AIDS, and condoms. They tell the caller what CTN is all about—a soapbox for politics, art, hobbies, any kind of conversation you’d like to have with other people in the community—using the medium of Television, because Television usually gives only wealthy people who can buy television time a voice, and is so often censored by SOMEBODY such as corporations, political pressure groups, or government censors. Community Access is open to everyone as part of the Federal Cable Act. While you can’t sell stuff or ask for money, or libel people, or cablecast obscene things, or violate copyrights, and you are not censored by any government. CTN staff invite the caller, instead of stopping someone else’s speech, to produce his/her own show at CTN; training, equipment, and cabletime are all free to video producers. If the caller truly feels this video is obscene he can have the County Prosecutor look at it, and if there is merit, a Judge will rule. Just about everyone cooperates with this voluntary policy.

In her memo dated February 24, 1998, then-mayor Ingrid Sheldon vetoed City Council’s resolution returning to voluntary disclosure. She wrote, "I do not feel "voluntary disclosure" of content for mature audiences by producers is a sufficient protocol in helping them, the producers, request the most appropriate placement for their programming. This is not an issue of censorship, but an issue of respect for the potential audience member. Voluntary disclosure does not assist the audience in making a decision regarding their viewing selections. The 9:00 p.m. and beyond time frame is a clear notice to all, producers and viewers alike, that the material being cablecast may be more appropriate for mature audiences and the viewer assumes the risk for tuning in during that time period." She then urged, "that City Administrator Berlin consider a new policy that sets fair, defensible limits for the users of the system".

This is a paternalistic attitude on our local government’s part, using a strong hand to guide viewers and producers into making the "correct decision". Citizens in a democracy must have free rein to make the best decisions for themselves.

Neal Berlin’s response is dated March 2, 1998. He had reviewed policies in other communities, the actions of the CCC and City Council and requested the City Clerk (Winnie Northcross) and Cable Administrator (Hap Haasch) develop a voluntary disclosure form.

Berlin wrote, "Because actions of both the Cable Communications Commission and the City Council reflect a current standard for which only non-mandatory disclosure is required, the establishment of a mandatory disclosure requirement now by administrative action is not supportable. In the future, if the Cable Commission and City Council determine that local standards have shifted and require mandatory disclosure and scheduling, the voluntary disclosure categories may form the basis for such mandatory disclosure and scheduling."

Berlin’s tactic illustrated above is bad faith, leaving the issue dormant, using the current disclosure as a basis for more restrictions when he thinks people are shocked into accepting censorship. Nothing has changed since 1998. Shocking videos were shown then, as now. Another shocking video was shown later, just when the discussion had quieted down a few degrees. Would Berlin continue to monitor public opinion after these proposed changes were made to CTN policy, then change the policy back to what we have now? Probably not.

This is the real issue. Once any restriction is placed on a freedom, it becomes much easier to place further restrictions. Most Americans support free speech in the abstract, but many back off when controversial issues like flag burning, prayer in public schools, or sexually-explicit art or lyrics are given as examples.

Those who wish to silence the "indecent" programming that occasionally appears are trying to end-run the lawful procedure that exists through the county prosecutor’s office. This is because these videos are not truly obscene and not illegal. I’ve been told by one CCC member that nothing recently taken to the County Prosecutor has been labeled obscene. What is considered obscene? The 1973 U.S. Supreme Court decision Miller v. California (the "Miller Test") considers community standards to include tolerance of "adult" videos at the local video store, so you can see removing indecent videos from CTN runs into legal problems.

The City Attorney’s Office’s job is to protect the city from liability. They are concerned someone will sue the City of Ann Arbor for cablecasting an indecent video or one actually judged obscene. The only way we discover a video is obscene is for it to be cablecast so someone sees it and files a complaint with the County Prosecutor’s office. The video presenter bears complete responsibility for following all local, state, and federal laws concerning obscenity, libel, and copyright violation, but in our society the party with the biggest pocketbook is targeted. Federal law protects the city from this kind of lawsuit. But city attorneys need to understand the city would likely be sued if they implement overly restrictive rules interfering with free speech.

City officials and the community at large need to understand that the Constitution must be upheld at the local level, and CTN is a precious community resource that mustn’t be squandered because of videos that annoy/shock some people.

www.ci.ann-arbor.mi.us/framed/f-index.htm