Historical October 1983 report or notice. Original dates, prices and contacts describe the source period; current availability has not been established.
In recent weeks, there has been a great deal of controversy and misinformation over the possibility that a cable operator might provide what some view as indecent materials on future cable TV programming here in St. Louis. Alderman Timothy Dee, 17th Ward, introduced Board Bill 128 in an effort to regulate/prohibit such “indecent” material in this medium. I led the fight against this legislation.
There have been many reports on television and the newspapers about my position on this matter.
As I hope you understand, I am not for publicly showing indecent materials at any time, but I firmly believe that, unless these materials are also obscene, government has no right to censor what we may see or read in our own homes.
I know that this subject is very important to many of you, and I very much appreciate that the editor of The Paper has allowed me the space to present my unedited statement to you.
City ordinance 58539, approved March 23, 1982, (which I supported) already prohibits the distribution of obscene material or performances by a cable television operator. Board Bill 128 would unconstitutionally extend this prohibition to “indecent” material as defined by my colleague. That is, it would demand censorship contrary to our rights under the First Amendment of the Constitution.
In 1957, the Supreme Court ruled in Roth v. United States that obscenity was not protected under the First Amendment.
However, in recognition of the dangers inherent in regulating any form of expression, the Supreme Court, in Miller v. California (1973), carefully defined and established a three-pronged standard under which to evaluate the permissable regulation of communication in this country.
The Miller court found that: The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
To its credit, our current anti-obscenity ordinance mandates these guidelines.
The anti-indecency bill currently before us does not and, if passed into law, such a serious constitutional flaw certainly would subject the city to costly litigation and damages for no worthwhile reason.
We already have a constitutionally sound anti-obscenity law on the books!
If we apply the Miller guidelines, except for “nudity,” all of the evils defined as “indecent” in Board Bill 128 (representation or verbal description of a human sexual or excretory organ or function; or … ultimate sex acts, normal or perverted, actual or simulated; or masturbation) can be prosecuted under current law. Simple “nudity,” which is also defined as indecent in the bill, has never been determined by the Supreme Court to be obscene in a communication, even as it relates to children (Erznoznik v.
City of Jacksonville 1975), and virtually all attempts to restrict the communication of constitutionally protected material have been found in violation of the First Amendment.
As to the efforts to ostensibly protect children, the courts have continually held that one cannot impede the communication of ideas or images that are nonobscene as to adults (Butler v. Michigan, 1957) .
It does not seem inappropriate to restrict all communication to that which is only fit for the eyes and ears of children. Indeed, many potential cable subscribers do not have children. Late last year, the Hon. Bruce S. Jenkins, a conservative U.S. District Court judge, facing strong community pressure otherwise, struck down a similar ordinance banning “indecent material” on cable television in Roy City, Utah, declaring that such measures were overly broad and unconstitutional (Community Television of Utah, Inc., v. Roy City). “Why must a community tolerate (such material)?
Because the First Amendment as interpreted by the high court of this land, says so,” Jenkins wrote.
A monolithic social structure tolerant of nothing, but approved ideas or points of view is too much akin to the horror of the German Reich… .
The First Amendment shields us from governmental excesses, no matter who occupies governmental offices…. Merely calling something pornographic or indecent does not make it so. Further, merely calling something indecent, does not make it pornographic.
In my opinion, (this) ordinance, as drafted, is an effort, no matter how well intentioned, to control communication that is on the protected side of the pornographic line set forth in Miller. “Diversity also is tolerated because the self-appointed monitor of purified communication may be in error,” Jenkins continues.
He then notes that such works as The New Testament, Leaves of Grass, King Lear, The Call of the Wild, The Grapes of Wrath, and even the Mickey Mouse Comic Strip by Walt Disney have not been immune from suppression over the years. Jenkins likened cable TV to a magazine. I emphasize again and again and again, public tolerance is not public approval. Nor does tolerance mean personal approval.
But it should be noted that if I subscribe to a magazine, I need not open its cover. I may pick and choose among the articles.
If displeased, I may cancel my subscription.
The same is true in subscribing to a cable television service. I need not hook up. I need not tune in. I may pick and choose among the programs and I may cancel. Jenkins stated that cable is not a broadcaster using public airwaves and therefore the 1978 FCC v. Pacifica Foundation ruling which upheld the right of the state to regulate an indecent but not pornographic radio broadcast does not apply to cable television. “Cable signals travel over wires, not in the air. Such signals do not travel except upon request.
They are asked for.
They are invited.” Earlier he wrote, The court finds great difficulty in distinguishing (other than popcorn) between going to the movies at a theater and having the movies come come to me in my home through electronic transmission over wire.
The choice is mine.
The location is different.
The content is the same. Why should the non-“indecent” on Main Street be transmuted by ordinance and municipal definition into “indecency” in my home?
We need not approve, but we (must) tolerate to the line of community standards drawn in Miller … Public tolerance stems from selfish. ness as well as from benevolence.
We tolerate the distasteful so that we may enjoy the good which may deal with the same subject with sensitivity, compassion, and understanding.
The doctrine of overbreath deals with the danger of legislating away the good when excising what some consider the bad.
The Roy City, Utah, ordinance is not the only local “anti-decency” law which has been struck down by the courts. Last month, a similar Miami, Florida, ordinance was ruled unconstitutional, by U.S. District Judge William Hoeveler (Cruz v. Ferre). Concurring with Judge Jenkins, Hoeveler wrote that regulations banning “indecency” do not apply to cable because the technology provides safeguards, such as the requirements of subscription and the availability of lockboxes and other parental control devices. “This opportunity to completely avoid the potential harm to minor or immature viewers sounds the death knell of Pacifica’s applicability in the cable television context,” the judge wrote. Having determined that Pacifica does not control cable transmissions, Judge Hoeveler ruled that the Miami “ordinance regulating indecent material exceeds the strict limits of regulation set forth in Miller and are therefore unconstitutional.” He quoted these lines from HBO v. Wilkinson (1982): . . . Miller establishes the analytical boundary of permissible state involvement in the decision by (cable distributors) to offer, and the decision by subscribers to receive, particular cable programming.
The City of St. Louis already has a constitutionally sound anti-obscenity ordinance based on Miller guidelines. Reluctantly, both Judge Hoeveler and Judge Jenkins warn us that this is the legislative limit to regulating cable television programming under the Constitution of the United States.
This same conclusion is also reached by Thomas G. Krattenmaker and Marjorie L. Esterow in their scholarly article, “Censoring Indecent Cable Programs: The New Morality Meets the New Media,” which appeared earlier this year in the Fordham Law Review.
They conclude: “The state simply may not constitutionally regulate offensive material merely to protect its citizens’ moral sensibilities, certainly not when the acquisition of that material requires an affirmative, informed choice by an adult.” It is sadly ironic that our local attempt at censorship comes on the fiftieth anniversary of the mass book burnings by the Nazis in Nuremburg, Germany; and that the public hearing to debate the proposed legislation was scheduled during “Banned Books Week” sponsored by such groups as the American Library Association.
By calling attention to current attempts throughout the country to ban books which some individuals and pressure groups consider dangerous or objectionable, the sponsors of “Banned Books Week” hope to inform our citizens of the nature and magnitude of the threat censorship poses to our constitutional rights of freedom of speech and press. Their message is, “Don’t take the First Amendment for granted!” I can understand the frustration of the many who feel that our society is too • permissive.
They may be correct.
But they have no right, under the law, to limit other citizens’ options. I sincerely believe that those who disagree with what they see on television or read in print should heed the sage advice of Dr. Jerry Falwell, president of Moral Majority, Inc.
At an April 14, 1983, news conference, Dr. Falwell announced a new anti-censorship campaign to index books at school and public libraries. “This is not a campaign to take any book off the shelf of any library,” Falwell said. “Rather, it is a campaign to get books containing conservative and traditional moral views and philosophies on the shelves.” Isn’t this the correct response for cable programming as well? What children watch and read is another matter, especially my children.
But that is my responsibility, not yours or the state’s.
If you do not want your children to view what you feel is “indecent” material on cable, do not subscribe. That is your right and your duty.
But I do not think that is a realistic answer in our culture.
According to Father Joseph Felker, director of religious education for the Archdiocese of St. Paul-Minneapolis, as reported in the May 13, 1983, issue of the St. Louis Review, throwing away or locking up TV sets to keep children from watching objectionable programs is an unrealistic approach to promoting Christian values in television. “This would put television in the category of forbidden fruit and kids will do anything to find out what is there,” Dr. Felker said. Together with colleague Sister Donna Innes, the pair are revising a study guide on Christian values and TV for students. Sister Innes said that the guide’s structure enables students to make comparisons such as, “This is what I see on TV, and this is what I hold as a Christian.” She added that parents should involve themselves in their children’s viewing. Children should not be watching TV in isolation. Family discussions of the good and bad parts of programs can help children be “more discriminating later,” said Fr. Felker. “They learn to ask questions instead of just soaking up what they see….” While I in no way mean to infer that these religious scholars advocate allowing children to view indecent material, I firmly believe their approach is positive and enlightened applied to the subject at hand.
It is certainly a much better alternative than censorship.
In the words of Sydney Harris, “No police power or censorship power can be a substitute for the moral function of the parent and family.” In conclusion, I’d like to borrow some thoughts about indecency from Judge Jenkins’ judgement in Home Box Office, Inc., v. Wilkinson. Merely calling something “indecent” doesn’t necessarily make it so.
The ideal of the human body is not indecent; it is beautiful. under my definition of “indecency,” a great percentage of what we see even on commercial television is indecent. I think the appeal to violence is indecent. I think the appeal to the lowest level of the intellect is indecent. I think the appeal to instant gratification is indecent. I think appealing to the worst in all of us is indecent. I think appealing to the emotional and religious fears of others for personal gain is indecent. Those who do ought to be ashamed of themselves.
But that does not mean that what they do should be censored.
If I am offended by something I see on TV, I turn it off! That’s the nice thing about TV, not just cable TV, but also with the regular broadcast channels that are allocated, licensed, and regulated by the government.
There is no law that says you have to purchase a television set.
There is no law that says you have to subscribe to cable TV, any more than you have to subscribe, read, or watch any communication, from The Bible to Playboy magazine.
One of the greatest virtues of our system is the freedom to choose.
We should never tolerate an attempt to limit the scope of ideas or images.
Originally published in The Paper, October 1983.
Read this article in the original newspaper issue.
Archival transcription note: Legal interpretations, case citations and quoted judicial passages are the alderman’s 1983 statement, not current legal advice. The printed sentence It does not seem inappropriate to restrict all communication appears inconsistent with the surrounding argument; preserved for editorial review.
Original source: SD_Times1983_10.pdf, printed page(s) 7; PDF page(s) 7.
