This is my "Trial Brief", in which I put all my arguments so I don't have to take the Court's time presenting them during the trial. I delivered Mediacom's copy to them roughly 2pm November 19, the hearing being the next day. (I actually delivered it to them ON MY WAY to the Court, so they got their copy about 10 minutes before the official court copy was filed.) Mediacom filed their copy about 3:30, by email I presume, and instead of emailing me a copy (as they had the stipulations 2 or 3 days before) they put a paper copy in the mail to me, which I got after the hearing. Meanwhile they also gave me a copy as I entered the court room.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

David F. Leach, Plaintiff, v. Mediacom, Defendant

Trial Brief

Civil Action 4L02-CV-70545
___________________________________________________________________________
Contents:

I. Issues Remaining

II. Ripeness

III. Alleged Grounds for Censorship under existing law.

A. Obscenity.

B. Invasion of privacy/Unreasonable risk of liability (extraordinary problem?)

C. Perceived threat of harm/Unreasonable risk of liability (extraordinary problem?)

IV. Challenge to Constitutionality of 47 U.S.C. 531(e).

A. "Public Forum" or private business? (Or both?)

B. Monopoly.

C. The Divided "Minority"

D. Are "changes in the technology" relevant?

E. Does in-house, vs. delegated censorship, affect "public forum" status?

F. What does "constitutionally proscribable" add, to the grounds of censorship in federal law?

G. Denver's "Hypocrisy Standard"

H. Denver's "Extraordinary Problem" Standard Favors PEG Continuation

V. My photos: "Extraordinary problem", or "religious and political speech"?

 

I. Issues Remaining.
Plaintiff's issues remaining before the court are issues (b) and (c) from Plaintiff's original brief: censorship of his photos showing what abortion does to babies, and of his photos showing abortionists' patrons. The remaining issues, (a) and (d) through (g), have either been fully resolved, or have been resolved to a sufficient degree to be no longer, in Plaintiff's view, great enough problems to merit the Court's attention.

II. Ripeness
. Mediacom asserts my remaining issues are not "ripe" because I had not actually submitted a show containing the prohibited photography (photos showing what abortion does to babies, and showing abortionists' patrons) prior to filing this lawsuit. I hope this response is moot because my submission of the show, on November 13, 2002, satisfies this objection of Mediacom.

In case any objection remains, I would argue it is not necessary to show actual injury, if injury can be shown to be "imminent".

"A moving party must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages." National Ass'n for Advancement of Colored People, Inc. (NAACP) v. Town of East Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 [2d Cir. 1989]); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982)

In view of Mediacom's letter to me promising to cancel my show for 3 months if I submit a show with a second violation, there is no question that had I submitted the prohibited show before filing this lawsuit, in order to satisfy Mediacom's notion of "ripeness", Mediacom would have canceled my show for 3 months. Fortunately, Mediacom has now agreed not to invoke the 3 month cancellation if I submit the prohibited tape for the purpose of satisfying Mediacom's counsel. So that was done, on November 13, 2002.

In submitting the tape November 13, it was my intention to show photos relating to issue (b) which were actually broadcast on the 6 pm news of TV 8 and TV 13, since my argument in my original brief focuses on the significance of those photos, but when I was producing it I forgot that point, and instead used video which I had previously aired on my cable show, which I made part of the background of a religious song. ("I Walked Today Where Jesus Walked.") The photos I had intended to air were the photos which may be seen, covered with blurring and text, during the song at the beginning of the program.

I make this clarification now in order to invite anyone to inform me if they think I really should submit a tape of those photos, unblurred, too. However, until told, my understanding is that the very refusal of Mediacom to settle on this issue, but rather to continue to trial, satisfies any question of "ripeness", since it is obvious to all that "the injury [I] will suffer is likely and imminent, not remote or speculative". It is quite certain that any tape I submit with such pictures shown clearly, will be censored.

III. Alleged Grounds for Censorship Under Existing Law.

A. Obscenity.
Mediacom says "Plaintiff['s]...videotape isolating on (sic) persons on the private property of Planned Parenthood of Greater Iowa -- ...Mediacom has indicated it would reject such programming as unprotected speech or speech meeting its definition of obscene ("Offensive to accepted standards of decency or modesty." American Heritage Dictionary, Second Collete Ed.)..."

I was unprepared for this analysis of my video of abortionists' patrons. Mediacom had publicly announced, in August, that they would not air this video because it is a "third party invasion of privacy". Having been unable to find this concept anywhere in American law, and my requests as to its whereabouts having been rebuffed by Mediacom, I was looking forward through these proceedings to discovering its home. But instead of being a "third party invasion of privacy", I now learn the video is "obscene".

This, now, is why I should not be allowed to air video of abortionists' customers. Mediacom argues it is obscene! Yes, obscene! Do they suggest Planned Parenthood's customers are, themselves, obscene? But if they are not, it is hard to understand how film, of them, would be.

I did not know a lawyer, basing his defense on the much litigated word "obscene", would proceed to define it from scratch, with the aid, not even of a law dictionary, but of the multiple choice buffet of a common dictionary. As if the reams of well publicized case law and court "tests" are not worth his mention.

It is as if "obscene" was found the most malleable of the three federal grounds of censorship in 47 U.S.C. 531(e) (obscenity, indecency, and nudity). The video couldn't be accused of being "nudity". "Indecent" didn't stick. But by finding an ambiguous enough definition in a dictionary, and leaving out the parts of the definition that tie the word to sexual material, and by applying the word not to the content of the film but to the decision to film, the word became of service to Mediacom in its statement before the court:

Mediacom has indicated it would reject such programming as unprotected speech or speech meeting its definition of obscene.

ITS definition of obscene? Mediacom wants to enforce ITS definition of obscene, instead of the well publicized Supreme Court definition of obscene?

Had Mediacom turned, for its definition, to a LAW dictionary, it would have found these further details:

"Objectionable or offensive to accepted standards of decency. Basic guidelines for the trier of fact in determining whether a work which depicts or describes sexual conduct is obscene is whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, whether the work taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California 413 U.S. 15, 24, (1973). Pope v. Illinois 481 U.S. 497, 107. (Blacks' Law Dictionary, 6th Edition)

("Prurient interests" means "lustful, lewd, or lascivious thoughts".)

The practical problem of using different dictionaries to define the words of laws, than lawmakers use, is that laws can then be made to say ridiculous things. If Mediacom is allowed to use ITS definition of obscene, and it chooses "offensive to accepted standards of decency", which it takes to mean "standards accepted by Mediacom", then anything the law requires Mediacom to do, which fails to make Mediacom any money, can, on that basis, by perceived by Mediacom as "obscene" and below its "standards of decency". Having to give away free air time may be seen by Mediacom as "indecent".

Gone from memory are the Miller tests, and all the other decisions which narrow the application of obscenity laws to not just anything that ticks off a communications bureaucrat, but to one particular thing: sexual garbage. In the place of court precedent is a mushy, subjective, vague, yet-to-be-defined standard which leaves decent citizens wondering: "Is Mediacom truly raising its standards? Will it indeed no longer violate 'accepted standards of decency or modesty'? Does this mean they are actually going to pull the plug on MTV?"

"Accepted standards of decency or modesty"? Even if out of curiosity we lay aside case law long enough to contemplate its proposed replacement, we must face the fact that even these words, like the word "obscene" itself, have a sexual component. "Immodesty" means a laxity of dress standards uncomfortably approaching nudity. "Decency" is the synonym which though usually connoting sex, is useful without a sexual component; however, its antonym, "indecent", the word in 47 U.S.C. 531(e), nearly always means something sexually offensive.

Is there sexual content in abortionist's patrons walking in and out of a building, that I am missing?

The Eighth Circuit understands that "sex-related material" is the only material that can be banned under the category of "obscenity":

"The FPATV Committee and the Council have not attempted to justify the regulation on the basis of the need to protect children from patently offensive sex-related material. See Denver Area Educ. Telecom. Consortium, Inc. v. F.C.C., 116 S. Ct. 2374, 2386 (1996) (discussing the permissibility of regulating patently offensive sex-related material that is easily accessible to children).... Accordingly, we do not reach the issue of whether Coplin's show could be regulated, consistently with the First Amendment, in order to protect children." Coplin v. Fairfield Public Access Television, 111 F.3d 1395 (8th Cir. 1997)


Mediacom alleges my photos showing what abortion does to babies ought to be, not altogether banned, but banished to the middle of the night where Children will be less likely to see them. Under color of what provision of law? Mediacom does not say, in its brief. Could they, too, along with the film of abortionists' patrons, be "obscene"? Are these photos, then, "sex-related material"? Is anyone's "prurient interests" appealed to by these photos? It would have to be one sick citizen.

Surely no one can say photos of slain babies appeal to prurient interests, by the standard of "prevailing community standards". Roughly half our nation finds those pictures representative of the truth, and not just any truth, but the most important truth to America's future security today. In light of the powerful spiritual movement behind the truth which these pictures represent, can anyone, even counsel, say the pictures have "no redeeming social value" or that "taken as a whole", that is, in the context in which they are presented, "they "lack serious...political...value"?

What kind of America would let a naked clown masturbate on a public access TV station, not even bother to censor the show, and let him walk in criminal court because that is not "obscene" but merely "indecent", (State v. Harrold Filed October 27, 1998. No. A-97-1167), but then come after photographic evidence of horrible sins as proclaimed by 50% of Americans, finding those pictures ARE obscene? What kind of law would that be? What cruel legalism could call such wickedness "legal" and such Christ-honoring Christian witness "illegal"? Would not our new definition of "obscene" stretch to cover such thinking?

The Denver ruling always spoke of "obscenity" in a sexual context, never in any other context. Here it plainly says the FCC rule's even more ambiguous language, "patently offensive", was likewise limited to sexual material:

Section 10(a)'s definition of the materials it regulates is not impermissibly vague. Because the language used is similar to that adopted in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607, as a "guideline" for state obscenity laws, it would appear to narrow cable operators' program-screening authority to materials that involve the same kind of sexually explicit materials that would be obscene under Miller, but that might have "serious literary, artistic, political or scientific value" or nonprurient purposes, ibid.

On the day laws against "obscenity" are broadened beyond sexual subjects, to whatever "patently offends" anybody with an opposite view, quoting the Bible will become a crime.

On the day that federal law may be violated in order to meet "accepted standards of decency and modesty", meaning those "standards" which are "accepted" by the violator, terrorists will win the War on Terrorism.

B. Invasion of privacy/Unreasonable risk of liability. (An "extraordinary problem"?)

I apologize in advance for what I hope will prove an unnecessary burdening of the Court's time with a response to an argument which has not yet been brought officially before the Court. But there have been indications it will be raised by Mediacom.

This case began when Deborah Blume, speaking for Mediacom, told the world they would not air my photos showing abortionists' patrons because that would be a "third party invasion of privacy". When I saw what a short list of grounds of censorship 47 U.S.C. 531(e) gives, (obscenity, indecency, nudity), and that "third party invasion of privacy", is not on that list, I wondered what legal theory could justify Mediacom's censorship on that ground even if it WERE in some other law?

It has been suggested to me that Mediacom is concerned about the threat of liability; should I be sued, my idemnification statement would protect Mediacom only to the extent of my assets, and beyond that Mediacom would be at risk. Then I thought of the "extraordinary problems" standard introduced in Denver. The majority had said:

This Court, in different contexts, has consistently held that the Government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech. (quoted in Coplin)

So the theory occurred to me: What if Mediacom alleges the likelihood that an abortionist's patron will sue me for my pictures of him or her subjects Mediacom to an unreasonable risk of liability, which is an "extraordinary problem" justifying adding "third party invasion of privacy" to the short list of grounds of censorship in 47 U.S.C. 531(e)?

Since that seems as strong an argument as any on the record, a response to it seems appropriate.

I am sympathetic to any genuine liability threat, but an extremely remote threat, or a threat extremely unlikely to succeed in court, is not sufficient reason to overturn the federal law protecting freedom of speech. Coplin v. Fairfield Pub. Access Television, 111 F.3d 1395, 1398 (8th Cir. 1997) details a four part test which any challenge to my photography would have to survive. It simply cannot.

Mediacom confuses this issue, saying Coplin doesn't apply to Mediacom because Mediacom is a private business. The point of Coplin is that that four part test is what a successful lawsuit against me would have to survive, to create any liability. The possibility of any lawsuit against me surviving such a test is extremely unlikely. Without a genuine liability threat, there is no compelling reason to overturn federal law. Until federal law is overturned, it does not permit censorship on the ground of perceived invasion of privacy, or of perceived threat of liability.

My original, October 15 brief summarized the four-part test in Coplin and compared the Coplin facts with mine to show I have an even stronger case than Dr. Coplin for saying my video does not invade anyone's privacy in any recognized legal sense.

"But", it may be asked, "even if you are not guilty enough of invading privacy to justify censorship of you, anyone can sue, and surely abortionist sympathizers will, with the full legal and financial backing of the same abortionists whom, the Des Moines Register reported, exhausted the legal resources of the Storm Lake County Attorney to the point they dropped their murder investigation! (10/22/02, "We don't have the resources or the time to devote to it.") A lawsuit doesn't have to be successful to bring you and Mediacom to your knees!"

To this reasonable concern, the correct answer is "The four-part Coplin test is a pretty good indication of what a future court will require not only of a would-be censor, but also of a would-be plaintiff. Because it seems highly improbable anyone I film could pass that test in the course of a lawsuit conducted fairly, the threat of a lawsuit succeeding only by perverting justice through an 'obscene' infusion of money, cannot justify the setting aside of any law. Especially law that protects freedom of speech, when that speech is directed against the very intimidation of Due Process that raises the suggestion of setting aside Constitutional rights for fear of angering a ruthless legal adversary! That is like shooting the boy with his finger in the dike because he is making the ocean mad!"

The best protection from unjust liability, for both Mediacom and myself, should the Court grant my petition, will be a ruling clearly explaining why video such as I have submitted is not an invasion of anyone's privacy in any recognized legal sense, and why the Court does not reasonably anticipate it could become grounds for a successful lawsuit.

I should not be glib about the impossibility of the "extraordinary problems" standard being applied against me, since Justice Kennedy warns, in Denver, "This heretofore unknown standard is facially subjective and openly invites balancing of asserted speech interests to a degree not ordinarily permitted." But Coplin quotes the standard as expressed above, and concludes, in a case weaker than mine, "Furthermore, we hold that the FPATV Committee and the Council have neither alleged nor proven "extraordinary problems," see Id. at 2385, that would justify barring Coplin from using FPATV."

C. Perceived threat of harm/Unreasonable liability risk. ("Extraordinary problem"?)


Here again is an issue not yet before the court, but which I reasonably anticipate will be raised.

It has also been suggested to me that Mediacom fears my photos of abortionists' patrons could cause them liability on the grounds the patrons fear for their lives from my camera; or that my photos of them are some sort of implied threat.

The case allegedly capable of tying together so improbable a legal theory is Planned Parenthood v. Amer. Coalition of Life, F.3d 1058 (9th Cir. 2002). My own concerns for the validity of this decision are shared by the appeals panel which reviewed it previously, and we must wait now upon the U.S. Supreme Court for a final judgment.

This decision says the prolifers were found "liable for putting the doctors in harm's way by singling them out for the attention of unrelated but violent third parties, conduct which is protected by the First Amendment" in my view, and in the view of the first appeals judge. This ruling acknowledges "ACLA's statements could [not] reasonably be construed as saying that ACLA, or its agents, would physically harm doctors who did not stop performing abortions." This decision decided the prolifers WERE guilty of "true threats" even though they could not reasonably be accused of threatening to do anything themselves. An astounding decision.

But even if this legal theory is upheld, the factual differences between my photography, and the communications of the ACLA defendants, WILL protect me from a lawsuit based on this decision.

For one great big difference, the ACLA plaintiffs alleged that abortionists have not only been threatened, but killed, and each one killed has previously had his name on one of ACLA's "Wanted" posters. Thus each new "Wanted" poster was an "implied threat" that its subject, too, would be shot. But NO ONE has ever PROPOSED or JUSTIFIED shooting, or harming in any way, abortionists' customers!

Another difference is that the ACLA defendants were quoted as expecting the abortionists to be afraid of being harmed, or at least of being sued, because of the posters; but NO ONE has SUGGESTED that any person photographed by me ought to feel afraid for their safety, or afraid of being sued, as a result of the photos! Not even Mediacom, in any public statement made to date, unless Mediacom is getting prepared to NOW allege such an unlikely scenario, for purposes of creating a leg for its defense of its censorship to stand on.

Another big difference: the ACLA defendants targeted named individuals, including home addresses which the Court said was where they drew the line: I will not make any attempt to identify anyone; I will show only a face, which only the most dedicated, well financed investigative team would be able to systematically identify.

This difference is also relevant to a charge of invasion of privacy, Coplin. Even though the address was given where hot, steamy, frequent sex was alleged to occur, and even though a caller who considered the show "not in very good taste" was opined to probably be a public access board member who was probably masturbating while watching the show, and it turned out later the caller was actually the spouse of a board member, the Court said this was not an invasion of privacy because names were not given.

Footnote 5: In addition, we cannot rule as a matter of law that Coplin invaded the privacy of the caller whose alleged masturbation habits were ridiculed. The caller was never identified by name or by address. Coplin and his co-host merely questioned whether the caller might be "someone on the board." Fairfield Speaks Tr. (Oct. 24, 1994) at 12, reprinted in J.A. at 170. There is also no indication in the record that the caller's voice was recognizable to Coplin or to members of the viewing audience. Consequently, it is impossible to conclude as a matter of law that the privacy of this individual was invaded in any meaningful sense.

It is true that viewers who know the abortionists' patrons whom I intend to film, will be able to identify them; just as viewers who saw the Coplin show, who knew the caller whose wife was on the FPATV board, will know who called; and yet because the identification was not made in such a way that the general public could identify the caller, (by providing either name or address), the Court said "it is impossible to conclude as a matter of law that the privacy of this individual was invaded in any meaningful sense."

Another big difference: the posters at issue followed earlier posters which were followed by actual violence. However, NO photos of abortionist's customers have EVER been followed by any actual violence, or even any actual THREATS, to those photographed. The ruling explains why this difference is critical:

"However, the merchants also sought damages from Evers for his speeches. He gave one in April 1966, and two others in April 1969. In the first, he told his audience that they would be watched and that blacks who traded with white merchants would be answerable to him; he also said that any "uncle toms" who broke the boycott would "have their necks broken" by their own people. In his April 19, 1969 speech, Evers stated that boycott violators would be "disciplined" by their own people and warned that the Sheriff could not sleep with boycott violators at night. And on April 21, Evers gave another speech to several hundred people calling for a total boycott of white-owned businesses and saying: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Court concluded that the "emotionally charged rhetoric" of Evers's speeches was within the bounds of Brandenburg. It was not followed by violence, and there was no evidence--apart from the speeches themselves -- that Evers authorized, ratified, or directly threatened violence. "If there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence." Claiborne, 458 U.S. at 929, 102 S.Ct. 3409. As there was not, the findings were constitutionally inadequate to support the damages judgment against him and, in turn, the NAACP."

Another big difference is that the ACLA defendants made several statements indicating their own expectation that abortionists would be intimidated by their speech. I have never, and will never, nor have I ever THOUGHT of, making any statement which would make any abortionist customer fear any physical threat. The court explains:

"...we are urged to adopt a subjective intent requirement for FACE. ...However, this much is subsumed within the statutory standard of FACE itself, which requires that the threat of force be made with the intent to intimidate."

Furthermore, I have already published position statements specifically refuting the use of force as less effective than particular peaceful efforts to stop abortion, (see www.Saltshaker.US, click on "help me stop the violence") and I will continue to make absolutely clear that I do NOT accuse everyone going in or out of an abortionist's office of seeking an abortion (especially male lawyers), and I am ready to negotiate any other clarifying language necessary to avoid liability.

The issue is not, therefore, whether current law permits Mediacom to continue its censorship of my photography. It clearly doesn't. The issue is whether the current law ought to be preserved.

IV. Challenge to Constitutionality of 47 U.S.C. 531

A. "Public Forum" or private business? (Or both?)


Mediacom sees more hope in Denver of hostility towards 47 U.S.C. 531 than may be merited. Mediacom asserted in its October 29 brief:

Mediacom asserts that it is neither a state actor nor are its property and facilities a public forum and, therefore, that any statute or franchise that mandates that Mediacom dedicate channel capacity for public access violates its rights under the First and Fourteenth Amendments. Further, any provision of law or franchise that limits Mediacom's ability to exercise editorial discretion constitutes an impermissible infringement of its speech, press and property rights.

Four justices in Denver refused to decide whether cable companies are public forums or private businesses for purposes of determining their right to censor PEG channels: Breyer, joined by O'Conner, Souter, and Stevens. Kennedy, joined by Ginsberg, said they are definitely public forums so they have almost no power to censor smut. Thomas, joined by Rehnquest and Scalia, said they are definitely private businesses and shouldn't even be required to HAVE PEG channels.

It is upon this tally that Mediacom bases its confidence that it is not a public forum, and is above obedience to 47 U.S.C. 531.

But the tally is not just 3-2 for Mediacom of those who took a position. It is 6-3 against Mediacom. The four who refused to formally decide whether Mediacom is a "public forum", refused only because they thought it a squabble over a label; they said no matter what label cable companies carry, the Court can both authorize them to censor smut a little bit, and prohibit them from censoring any more than that; the four are quite content that the result they reached, the status quo, is "the right balance between competing interests". For example, the following statement by the Plurality takes comfort in the fact that the "reasonable belief" clause does not permit the cable company ANY latitude to "expand" the grounds upon which it can censor. This statement is evidence of unwillingness to consider ANY FURTHER expansion of the censorship authority of cable companies, which rules out any foreseeable inclination of these justices to give cable companies unlimited censorship by overturning PEG channel requirements.

We concede that the statute's protection against overly broad application is somewhat diminished by the fact that it permits a cable operator to ban programming that the operator "reasonably believes" is patently offensive. Ibid. (emphasis added). But the "reasonable belief" qualifier here, as elsewhere in the law, seems designed not to expand the category at which the law aims, but, rather, to provide a legal excuse, for (at least) one honest mistake, from liability that might otherwise attach.


Just one more quote for now from the plurality (more will follow later):

The first is the historical background. As JUSTICE KENNEDY points out, see post, at 9-12, cable operators have traditionally agreed to reserve channel capacity for public, governmental, and educational channels as part of the consideration they give municipalities that award them cable franchises. See H. R. Rep. No. 98-934, at 30. In the terms preferred by JUSTICE THOMAS, see post, at 17-18, the requirement to reserve capacity for public access channels is similar to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality's approval of a subdivision of land. Cf. post, at 15-16 (KENNEDY, J.). Significantly, these are channels over which cable operators have not historically exercised editorial control. H. R. Rep. No. 98-934, supra, at 30. Unlike @ 10(a) [pertaining to leased access channels] therefore, @ 10(c) [pertaining to public access channels] does not restore to cable operators editorial rights that they once had, and the countervailing First Amendment interest is nonexistent, or at least much diminished. See also post, at 13-15 (KENNEDY, J.).

Mediacom assumes it is not a "public forum" ("such as public streets, parks, or buildings dedicated to open speech and communication" wherein "content-based restrictions upon speech" are "constitutionally forbidden", Denver, supra) because it is a privately owned business with its own free speech rights to not be forced to air content which does not meet its high moral standards.

Mediacom of course does not mean it thinks its view is shared by current case law; but that its goal is to make case law conform to its view.

The current case law declines to say whether Mediacom is, or is not, a "public forum". Coplin says:

"Because [the public access channel] was 'available to any resident of the city'....we would ordinarily conclude, under a standard forum analysis, that [the channel] was a designated public forum. However,...Denver...has cast some doubt on the appropriateness of this analysis....Nevertheless, after closely reviewing the structure of [the channel], we hold that [it has been] sufficiently opened...to the citizens...that control over access cannot be based on subject matter...."

In other words, whether or not you CALL the cable company a "public forum" or not, it is, insofar as its right to censor goes, once it publicly advertises itself as a public forum. Once it decides to walk like a duck, and talk like a duck, it gets duck food. If there are clues in Denver that the Supreme Court is ready to overturn the federal requirement of public access channels, they exist beyond the Court's mere hesitation to call cable companies "public forums".

Had Mediacom agreed, in its franchise with the City of Des Moines, to air shows only of abortionists on its Public Access Channel, AND if it wins its bid to overturn federal law requiring cable operators to offer public access stations, only then, as a privately owned business, may it exclude prolifers on the basis of their content.

I own the Family Music Center. As a private business owner, I have the right not to display popular music which I consider lewd. I freely, gratefully exercise that right. However, if I advertised that I will feature any and all music brought to me, then I would diminish my freedom to censor. Continued censorship would make me guilty of advertising fraud. And it would make me subject to any federal law (which I hope does not exist) which would define the limits of censorship of open music forums.

In determining that FPATV could not censor based on viewpoint, Coplin made no mention of the cable company's censorship arrangement with the City Council, but relied ONLY on the fact that FPATV had made its channel open to all citizens; a condition present with Mediacom in Des Moines.

Just as Coplin was indecisive only about whether to call cable companies "open forums", but not about whether cable companies operating as open forums had the right to censor like private businesses, in the same way Denver was mushy only about the right words to use to describe the legal status of cable companies; not about whether it is OK for cable companies to protect children from "patently offensive sex-related" obscenity. The majority in Denver explained, clearly I believe, WHY it declined to make a big deal out of which words they used: because that is all they are: words. The thing that matters is whether the obscenity can be stopped.

Finally, and most important, the effects of Congress' decision on the interests of programmers, viewers, cable operators, and children are the same, whether we characterize Congress' decision as one that limits access to a public forum, discriminates in common carriage, or constrains speech because of its content. If we consider this particular limitation of indecent television programming acceptable as a constraint on speech, we must no less accept the limitation it places on access to the claimed public forum or on use of a common carrier.

In other words, the reason we don't have to decide whether public access is a "public forum", is that it wouldn't make a lick of difference. Once we decide obscenity isn't protected by the First Amendment, it's only words whether we say our restriction "limits access to a public forum", or "limits use of a common carrier" (such as a telephone company, which has NO input into the content carried over its lines), or "constrains speech because of its content" (which may be restrained even on a street corner, if the content is obscene). We have the right to restrict obscenity under any name.

Perhaps critics of this reasoning make too much of the difference in levels of rights associated with these categories. Coplin failed to find "extraordinary problems" that justified censorship outside the grounds specified in the law. Denver told the perverts who wanted to air more sexually-related obscenity than the federal law allows cable companies to censor, that the cable companies SHOULD be allowed to censor, to the extent provided by law. There is no inconsistency here. There was no discussion in Denver, outside Justice Thomas's dissent, of overturning the federal law requiring public access stations, and there are many indications the plurality is quite happy with the status quo. Let's look at a few more.

Denver approved the FCC's slightly expanded grounds (@ 10(a)) for censoring smut in 47 U.S.C 531(e) pertaining to leased access channels (where producers pay for the airing of their shows and where advertising is permitted) but overturned similar FCC expanded grounds (@ 10(c)) pertaining to Public Access channels. Here is one of the reasons given by the four prevailing justices led by Breyer that "lead us to conclude that @ 10(a) is a sufficiently tailored response to an extraordinarily important problem":

Second, the provision arises in a very particular context--congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator's control. The First Amendment interests involved are therefore complex, and involve a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), H. R. Rep. No. 98-934, pp. 31-36 (1984), and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the cable operator would have assigned the channels devoted to access). See Turner, 512 U.S. at (slip op., at 11-12).

In other words, the law which remains on the books strikes the right balance between the need of cable companies to regulate filth, and "increasing the availability of avenues of expression to programmers who otherwise would not have them." There does not appear to be any spirit for destroying this balanced, "sufficiently tailored response to an extraordinarily important problem."

B. Monopoly. An additional indication the Supreme Court plurality is happy leaving public access channels in existence is its discussion of the monopoly which cable companies enjoy. Mediacom in Des Moines has a government protected monopoly over cable wires in Des Moines, and nationally, "Mediacom's cable systems pass approximately 2.6 million homes and serve approximately 1.6 million basic subscribers in 23 states." (http://www.mediacomcc.com/about.html)

Mediacom's signals cross state lines on many levels, (through wires, microwaves, satellite signals, contracts with customers), invoking federal authority under the Commerce Clause.

I don't think the Court uses "monopoly" in the sense of economic disadvantage to customers and competitors, which antitrust suits address, but in the sense of controlling the flow of televised information to cable customers.

Denver acknowledges these facts, quoting them as the position of the petitioners without any suggestion they are not true. The Court didn't buy the point the perverts were trying to make with these facts, that cable companies have such a tight throttle on information already, and are so intertwined with government, that they should have NO ability to censor sexual trash on a public or leased access channel. But the facts acknowledged by the Court would be relevant to any future consideration of ending public access channels altogether, which would leave the cable companies' monopoly absolute, over the televised political and religious information available to 60% of Americans.

....petitioners...point to circumstances that, in their view, make the analogy with private broadcasters inapposite [inappropriate] and make this case a special one, warranting a different constitutional result. As a practical matter, they say, cable system operators have considerably more power to "censor" program viewing than do broadcasters, for individual communities typically have only one cable system, linking broadcasters and other program providers with each community's many subscribers. See Turner, supra, at (slip op., at 8) (only one cable system in most communities; nationally more than 60% of homes subscribe to cable, which then becomes the primary or sole source of video programming in the overwhelming majority of these homes). Moreover, concern about system operators' exercise of this considerable power originally led government--local and federal--to insist that operators provide leased and public access channels free of operator editorial control. H. R. Rep. No. 98-934, at 30-31. To permit system operators to supervise programming on leased access channels will create the very private-censorship risk that this anticensorship effort sought to avoid. At the same time, petitioners add, cable systems have two relevant special characteristics. They are unusually involved with government, for they depend upon government permission and government facilities (streets, rights-of-way) to string the cable necessary for their services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies.

Justice Thomas' dissent acknowledges as "the primary justification", for giving cable companies less power than newspapers, to censor the fraction of their output at issue, the allegation (with which he took issue) that cable companies have more of a monopoly.

...monopoly power [is] the primary justification...for treating cable operators differently from other First Amendment speakers

Satellite broadcasting opens no alternative for poorly funded noncommercial "alternative" programs. Mediacom's monopoly is infringed by satellite programming only in the general sense that viewers have a real choice between cable or satellite feeds. But once the viewer makes that choice, Mediacom has a monopoly over the programming available to that viewer, (a monopoly which will be made absolute by the elimination of PEG channels) and cable viewers add up to a whopping 60% of all American viewers.

These principles further distinguish Mediacom's natural right to control its content with my right, as a music store owner, to censor not only obscene music on my shelves, but even music whose political or religious messages I might find objectionable. Mediacom has a government-created monopoly. I do not. No one else but Mediacom can send signals over its wires. Mediacom SHOULD be forced by law, as a condition of receiving a government monopoly, to provide some tiny degree of public access. Radio and TV stations have to do it, as well they should; they have to give away a tiny fraction of their air time for "public service announcements", and they must give "equal time" or "equal opportunity" to opponents of federal candidates they feature. These bits of access to the public are miniscule, and it is no unreasonable burden to impose them.

Broadcasters, too, enjoy a relative monopoly (not from competition from other broadcasters, but from the addition of any more competitors). God only created a limited frequency range in which man knows how to broadcast radio and TV signals, so that at the present time they are all used up; a new station with a billion dollars to get on the air simply can't do it; it has to wait for an old station to sell. In return for government protection of that precious airspace, a tiny pittance of access to the public is not an unreasonable imposition. Broadcasters have less control over what their viewers/listeners receive than cable companies; consumers can flip channels or stations in a moment, but cable customers are stuck with their choice (between cable, satellite, or just broadcast) for months or years.

Providing one Public Access channel, a few hours a day, out of 100 channels blasting away 24 hours a day, is likewise a miniscule imposition on Mediacom.

Newspapers, unlike broadcasters and cable companies, are not forced to carry any information they do not choose, but there as a strong reason for the difference. Their only "monopoly" is the success of their marketing. Competing newspapers can and do arise without any physical or regulatory limit; the only limit being the success of marketers to sell subscriptions and/or advertising. (And yet even though newspapers are not forced by law to carry the views of others, they do, by choice, on their editorial pages, which compare to public access channels.)

The want of any reason to require newspapers to carry opposing views, because anyone whose views are censored can start another newspaper to express them, is like the FCC's 1980 exemption for public access channels from its "equal time" rule, because any candidate who wants to respond to his opponent's public access show has but to produce a show of his own.

"...the channels on which such programming is presented themselves have inherent in their functioning, access of a type which makes possible equal opportunities for political candidates and time for the provision of programming covering all sides of controversial issues of public importance." Cable TV Access Channel Rules, 83 F.C.C.2d 147, 148 (1980).


This is not the case with broadcasters should "equal time" law be invalidated, or with cable companies should 47 U.S.C. 531 be invalidated! Americans who find their views censored cannot start up competing cable companies requiring the running of additional wires to homes! Nor can they enter the already crowded airwaves There is a physical limit to competition, which necessitates a government-regulated monopoly.

The argument for retaining 47 U.S.C. 531 is more than negatively asserting that the imposition is minimal. It is also the positive recognition of the importance to our liberty that information sources never have so tight a throttle on contrary views as to exclude the possibility of their public expression.

The importance of access to contrary views to any informed intellectual process is captured in one of the old Canons of Judicial Ethics, which were reduced in number from 26 to 7 in about 1968 (for convenience, I assume; not because the spirit of the old canons no longer guides proceedings). Canon #19 used to say:

"...a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law..."

The point of quoting this here is that it articulates the spirit not only of the ideal of Justice in America, but it also explains WHY Americans need more than one view of a story, that access to information which Americans have always considered vital to freedom.

Another way of stating this principal is to describe the adversarial system of justice, or the prohibition of ex parte communications. It simply makes no sense to expect any pursuit of truth to succeed, which hears only one side of an issue. Any criticism of a favored view must also be honestly considered, and then if no criticism can stand, the view may be confidently accepted as valid. But only then.

An even older precedent declares disinterest in the hearing of all sides of an issue the formula for foolishness. Proverbs 18:13 "He that answereth a matter before he heareth it, it is a folly and shame unto him."

For these reasons the federal law imposing the miniscule burden of a little bit of air time for opposing views is not an imposition on a private communication business's right to do what it wants with its own property, but rather it is a reasonable duty to expect of the recipients of a government protected monopoly, to pay extremely modest lip service to the protection of Free Speech.

C. The Divided "Minorities"


With Mediacom pinning its desperate hopes of overturning 47 U.S.C. 531 on only three of the nine U.S. Supreme Court justices, perhaps we should look more closely at the reasoning of the three, to assess its power to eventually persuade at least two more.

Our analysis of whether Mediacom is a "public forum" will now compare the opinion of Kennedy, joined by Ginsberg, who says cable companies ARE public forums, with the opinion of Thomas, joined by Rehnquist and Scalia, who says they are NOT, and they shouldn't even have to have PEG channels!

Justice Kennedy said cable companies can't censor smut any more than 531(e) permits, because "Access channels...are property of the cable operator dedicated or otherwise reserved for programming of other speakers or the government. A public access channel is a public forum...." He says cable companies are not like private property owners who "may exclude certain speakers from his or her property without violating the First Amendment".

Cable companies SHOULD have sufficient power to limit smut. The real issue is not whether PEG channels are the private property of the cable company, so that cable companies have a perfect right to keep as much garbage on their private property as they please. Rather, the law relies upon them to function as gatekeepers of the garbage that is thrown onto OTHER people's private property. We rely on police to control obscenity, nudity, etc. in public. But police cannot stop obscenity on cable TV; we must rely on cable companies to do that. (Besides, the principles of city "beautification ordinances" ought to apply as much to garbage on the front lawns of Mediacom's bandwidth, as they apply to garbage on the front lawn of its building.)

Not that we need cable companies to censor garbage, as defined by their personal political and religious preferences. We need cable companies to let political and religious information be expressed without restraint, and only go after sexual material targeted by law.

Justice Kennedy offers insightful documentation of the majority's drift from established precedents tolerating more filth, probably, than Americans were ready for. He shows how the drift is accomplished by abandoning the words of the established precedents, but substituting synonyms for them, and then applying them differently than the original words were applied. He begins with a phrase new to pornography precedent, premiering in Denver:

...whether the Act "properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech." ....This description of the question accomplishes little, save to clutter our First Amendment case law by adding an untested rule with an uncertain relationship to the others we use to evaluate laws restricting speech. The plurality cannot bring itself to apply strict scrutiny, yet realizes it cannot decide the case without uttering some sort of standard; so it has settled for synonyms. "Close judicial scrutiny," ante, at 11, 12, is substituted for strict scrutiny, and "extremely important problem," ante, at 12, or "extraordinary problem," ante, at 11, is substituted for "compelling interest." The admonition that the restriction not be unnecessarily great in light of the interest it serves, ante, at 12, is substituted for the usual narrow tailoring requirements. All we know about the substitutes is that they are inferior to their antecedents. We are told the Act must be "appropriately tailored," ante, at 11, "sufficiently tailored," ante, at 12, or "carefully and appropriately addressed," ante, at 18, to the problems at hand--anything, evidently, except narrowly tailored.

These restatements have unfortunate consequences. The first is to make principles intended to protect speech easy to manipulate. The words end up being a legalistic cover for an ad hoc balancing of interests; in this respect the plurality succeeds after all in avoiding the use of a standard. Second, the plurality's exercise in pushing around synonyms for the words of our usual standards will sow confusion in the courts bound by our precedents. Those courts, and lawyers in the communications field, now will have to discern what difference there is between the formulation the plurality applies today and our usual strict scrutiny. I can offer little guidance, except to note the unprotective outcome the plurality reaches here. This is why comparisons and analogies to other areas of our First Amendment case law become a responsibility, rather than the luxury the plurality considers them to be. The comparisons provide discipline to the Court and guidance for others, and give clear content to our standards--all the things I find missing in the plurality's opinion. The novelty and complexity of the case is a reason to look for help from other areas of our First Amendment jurisprudence, not a license to wander into uncharted areas of the law with no compass other than our own opinions about good policy.

Justice Souter's explanation of "why I join the Court's unwillingness to announce a definitive categorical analysis in this case" is reminiscent of Jesus' observation of the foolishness of "putting new wine in old wineskins", or of applying "to-the-letter" legalistic interpretations of old laws to new situations which violate the "original intent" of the laws. (Matthew 9:17) Souter acknowledges the value of categorical standards: "Reviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said."

But he warns, "It is a characteristic of speech such as this that both its capacity to offend and its 'social value' . . . vary with the circumstances".

Likewise, "Our analysis...the right of owners of the means of communication to refuse to serve as conduits for messages they dislike, has been equally contextual."

He said there are differences and similarities between cable TV and other mediums. One similarity between cable TV and broadcast TV, "that rendered indecency particularly threatening in [both, are their] intrusion into the house and accessibility to children".

The Plurality (the four, led by Breyer) had said moreover, that even if you call cable companies "open forums", they should still have some right to censor smut as the law provides.

One must still ask whether the First Amendment forbids the limitation. But unless a label alone were to make a critical First Amendment difference (and we think here it does not), the features of this case that we have already discussed--the government's interest in protecting children, the "permissive" aspect of the statute, and the nature of the medium--sufficiently justify the "limitation" on the availability of this forum.


Justice Kennedy may be right to point out the shift in language creates legal confusion which may prove costly. But perhaps there is a method in this "madness" which concerns him. He characterizes the decision as an "unprotective outcome", meaning it did not "protect" the perverts' right to air all the smut which they would have been able to under "strict scrutiny", and assuming leased access channels are "public fora". Perhaps the majority is simply tired of coddling ungrateful perverts so much.

But if that is what happened, why didn't the majority clearly reverse previous standards, using the established language? There are two possible reasons: (1) perhaps there was a strong enough nostalgia, or respect, for the older decisions, or indecision how far they wanted to go in altering them, that they were not prepared to comprehensively deal with them. Or (2) perhaps they were frustrated with the inability of the old language to reach a result in these new circumstances which made sense.

Precedents are not like Scripture. They are always worth studying because they articulate positions. Very often their descriptions are nuggets of wisdom. They aren't always right, but even when they are not, they are helpful in articulating thinking which must be refuted.

But frankly, pornography case law has been a disaster for years. It has made prosecution unreasonably difficult, and emaciated the soul of America. If the Court now has the heart to walk away from certain disastrous precedents by just sort of forgetting them, and by just starting using a new language that permits more reasonable results, that may be good. Sometimes the only way to escape the dreadful memory of a nightmare is to just stop talking about it.

According to my theory, the drift of the Court was not a positive desire to bless cable companies with greater freedom to censor, but a negative desire to stop protecting sexual smut. It does not follow that just because the majority was fed up with precedents that coddle smut, that it would also walk away from precedents that protect political and religious speech from cable company censors.

Justice Kennedy argued cable companies are "public fora", so therefore they have virtually no right to censor, not even smut. Had political or religious speech been before the Court, his "strict scrutiny" reasoning would have left him NO sympathy for ANY right of any cable company bureaucrat to censor it.

Streets. Justice Kennedy says that of the "two kinds of public forums", the "traditional public forums, like streets, sidewalks, and parks, which by custom have long been open for public assembly and discourse", and the "designated public forum, whether of a limited or unlimited character--property that the State has opened for expressive activity by part or all of the public", that "Public access channels fall in the second category. Required by the franchise authority as a condition of the franchise and open to all comers, they are a designated public forum of unlimited character."

Public forums do not have to be physical gathering places, ... nor are they limited to property owned by the government, .... Indeed, in the majority of jurisdictions, title to some of the most traditional of public forums, streets and sidewalks, remains in private hands. 10A E. McQuillin, Law of Municipal Corporations @ 30.32 (3d ed. 1990); Hague v. CIO, supra, at 515 ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions"). Public access channels are analogous; they are public forums even though they operate over property to which the cable operator holds title.


Justices Thomas and Scalia disagree, saying:

...we have never even hinted that regulatory control, and particularly direct regulatory control over a private entity's First Amendment speech rights, could justify creation of a public forum. Properly construed, our cases have limited the government's ability to declare a public forum to property the government owns outright, or in which the government holds a significant property interest consistent with the communicative purpose of the forum to be designated. .... Cable systems are not public property. Cable systems are privately owned and privately managed, and petitioners point to no case in which we have held that government may designate private property as a public forum.

In other words, say Thomas and Scalia, even if government doesn't own the property upon which it builds streets, (such as when private developers buy a 120 acre field and fill it with houses, streets, and a park), "government holds a significant property INTEREST" (one might even say "compelling public interest") in having streets so people can get to their houses.

But is there a difference, relevant to speech rights, between public streets built on privately owned land, and a public access channel created on privately owned bandwidth? The closest Thomas and Scalia come, that I can find, to a principle addressing that difference, is the phrase "consistent with the communicative purpose of the forum to be designated".

But streets on privately owned land don't even have a "communicative purpose", at least not directly. Certainly the government's purpose for claiming particular slices of private land for its own street-building, is not the need for "free speech" zones between those houses!

Perhaps we could apply this terminology to say the City of Des Moines "holds a significant property interest" via its ownership of the property under cable runs, (the square inches of public right of way over which cable lines cross must exceed all Mediacom's office space at 2205 Ingersoll) which is "consistent with the communicative purpose" of PA channels. But of course the "public" property which it "owns", actually is still owned by private property owners, of which they are reminded after the city paves their street.

It might be simpler to observe that the government's right to require private property owners to build streets on their property at their own expense is, to the public need for public access to individual privately owned parcels of land, as the government's right to require cable companies to provide channels accessible to the public on their own bandwidth at their own expense is, to the public need for public access for criticism and perspective to reach individual privately owned parcels of bandwidth.

Shall real estate developers build streets and then decide SUV's shall not be permitted on them because they make an unwelcome political statement about the environment? We might even sympathize with prohibiting semis from crossing weak bridges, or keeping motorized vehicles off bike paths. But other than for physical reasons, once the roads are built, Americans expect them to be available to all.

Public microphones at Public Hearings. In another attempt to cast Public Access channels as an unprecedented invasion of the rights of private businesses, Justices Thomas and Scalia say:

In no other public forum that we have recognized does a private entity, owner or not, have the obligation not only to permit another to speak, but to actually help produce and then transmit the message on that person's behalf.

But the "production and transmission help" is as miniscule, for a cable company, as maintaining a microphone is for a public hearing at the state capitol. [Ed. note: oops, I missed the point that state lawmakers are not private entities. Oh well, public forums are sometimes sponsored by private businesses, churches, and nonprofits. Once such a forum is created, they have the same rules: they can't censor for content, and they have to pay for the electricity used by the microphone amplifying speakers they hate.] Even if local demand pushed the provision of PEG channels up to the 15% maximum provided in federal law, that doesn't mean 15% of cable company costs would be for those channels! Channels for which cable companies have to expend nothing for production, or for sky high royalties, or even for an advertising department, cost very little compared with regular channels. The proportionate cost of PEG channels, to a cable company, is very small compared with the cost, to real estate developers, of paying for streets (built to city specifications) on their own private land. Streets and sewers are very expensive! (I realize that in some communities, cable companies also provide production facilities for public access producers. Sometimes that is volunteered by cable companies, sometimes it is required by the city. It is not required by federal law. The necessity of such facilities diminishes with time, as equipment permitting ever higher quality TV editing becomes ever cheaper and within the budget of the home studio.)

Moreover, private real estate developers have the obligation not only to permit another citizen to drive on their property, but "to actually help produce" the streets and street lights for that person's convenience.

Broadcasters, both radio and television, are required "to actually help produce and then transmit the message" of public service announcements. FCC "equal opportunity" provisions require broadcasters who have "produced and then transmitted the message" of a federal candidate, by choice, to turn around and "produce and then transmit the message" of that candidate's opponent, by law.

Bookstores. Justice Thomas shows the unfairness of requiring cable companies to provide PEG channels with a bookstore analogy:

...the author of a book is protected in writing the book, but has no right to have the book sold in a particular book store without the store owner's consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.

This reason applies to a book store but not a cable company because book stores must first buy the books they sell; a law forcing stores to buy more books than they would choose could drive the store out of business because of the cost of the books, and the cost of space to display them. Cable operators by contrast are imposed upon to expand their channel capacity by a maximum of 15%, and their costs of adding a channel, for whose content they pay nothing, are very little compared with other channels for whose content they must pay steep royalties. (Although Mediacom's recent decision in Des Moines to have their staff preview all PA programs has surely been costly.)

Departing from the letter of pornography precedent, to plain common sense, Thomas observes, "It is not intuitively obvious that the First Amendment protects the interests petitioners assert, and neither petitioners nor the plurality have adequately explained the source or justification of those asserted rights."

In the present discussion, where perverts are wanting more obscenity than the FCC wants to allow, of COURSE it is "not intuitively obvious" that they should get it. That doesn't mean that were petitioners wanting political or religious speech, that it would fail to be "intuitively obvious" that they should have it.

In fact, it is hard for me to believe that had an issue of political or religious speech been before Justices Thomas, Rehnquist, and Scalia, they would have voted to permit cable companies to end their public access channels in order not to air it! Surely their vote was a reaction to extreme pornography protectionism. (Although it is equally difficult to believe they were not mindful of the effect of their solution on religious and political speech.)

Would Thomas feel better about PEG channels had cities, instead of BARTERING them for public rights of way, SOLD public rights of way to cable companies, and then PURCHASED the bandwidth for PEG channels? In the beginning, I don't think PEG channels were the brainstorm of cities and then imposed on reluctant cable companies. I think they were the brainstorm of cable companies in order to entice reluctant cities to grant permission to use their rights-of-way. Now that cable companies already have their wires across every right of way in almost every city, and 60% of the voters are "addicted", so that it is too late for a city council to change its mind without infuriating voters, cable companies want to renege on their end of the barter.

Thomas says "In my view, the constitutional presumption properly runs in favor of the operators' editorial discretion, and that discretion may not be burdened without a compelling reason for doing so." It would seem to me that a signed, publicly vetted, decades-old contract would supply this "compelling reason".

D. "Are Changes in Technology" Relevant?

Mediacom asserts, as one of the reasons 47 U.S.C. 531 is now unconstitutional,

....the changes in technology that allow individuals such as Plaintiff to make effective "soapbox" communications via the Internet, including web streaming of video and audio as Plaintiff has done through his web site www. saltshaker.us;

In other words, Mediacom says it does not need to obey the federal law requiring them to have a public access channel which I can use, because I do not really need its bandwidth to express my views. I have other venues. I have a website. I have a business; I can post pictures in the window of my business. I can pass out leaflets door to door. I can stand on a soapbox downtown and yell at people. Why, therefore, with all these options available for me, should Mediacom have to obey the law?

I can even make Mediacom's argument against my need of their channel stronger. I will acknowledge that even if my website were destroyed, my business burned, my soapbox crushed, and I got strep throat, I could still be like the Christian in Pakistan who shared,

"Every morning I get on a bus in our city. As the bus begins to move, I walk down the aisle and hand out gospel tracts. These have the simple message of Jesus our Savior, who He is, why He came. People sitting on the bus have nothing to do. Many read them. Sometimes the Muslim men beat me. Usually by then 1 have finished my outreach, and I am near the back door. They do me the great favor of throwing me out the door. I might bleed, but I have a handkerchief. So I find another bus and begin again." (Voice of the Martyrs, November, 2002 AD)

Christians have never been without the means to witness. But the fact that God will always provide my witnessing tools, does not excuse Mediacom for stealing them, in violation of the law.

If a precedent is created that would relieve Mediacom of its legal duty to me, because I have other options, would it be a precedent for other broadcasters to escape their legal duties to people who have other venues? Might TV and radio broadcasters escape their legal obligation to give "equal time" to certain federal candidates, or sell ads to candidates at the lowest available rate, or accept political advertising at all, since candidates have the OPTION of sending junk mail?

If I lose my ability to ever put another show on a cable access channel, but politicians also lose their right to buy radio and TV ads, I won't know whether to dance or cry.

Mediacom seeks to end all Public, Educational, and Government Access (PEG) programming. The majority of public access programming is filled, in Des Moines, with church services. Will Mediacom say churches, too, do not need a public access channel, because they have another venue of expression: their church services?

Mediacom seeks to never again broadcast information for schools, or for city governments. No more city council meetings or school board meetings. Is Mediacom actually planning to argue, before the U.S. Supreme Court, that schools no longer need an educational access program for their school board meetings and special classes, because they have another venue of expression: their schools? Or that city councils no longer need to air their meetings, because they have another venue of expression: their city council meeting rooms?

Mediacom has found the antidote for antitrust actions. It is moot whether a monopoly crushes its competitors, or strangles the flow of information, because, Mediacom informs us, we don't really want to express ourselves there anyway. I don't NEED the freedom of speech to speak to my neighbor, because Mediacom has already given its blessing for me to speak to my dog. I don't need to reach the 60% of Central Iowans whose TV-delivered information Medicom controls, because I have "other venues" capable of reaching, say, 2 or 3% of other Americans.

Mediacom's discussion of other expression options is irrelevant to Mediacom's duty to obey the law, I would have thought. And up until the point where the law it violates is repealed, that duty remains, I thought.

Mediacom's argument is actually that the technology has changed so profoundly, now that we have websites, that the importance of television as a venue of expression has ceased, and 47 U.S.C. 531 is out of date! If that is so, why do people still line up to spend thousands of dollars for a few minutes worth of advertising on TV, instead of being content to spend a fraction of that money to host a website?

The "majority" didn't consider "changing technology" relevant to either of these concerns! It raised the issue only in relation to what it may take, in the future, to block sexual smut!

All of the relevant [*87]characteristics of cable are presently in a state of technological and regulatory flux. Recent and far-reaching legislation not only affects the technical feasibility of parental control over children's access to undesirable material, see, e.g., Telecommunications Act of 1996, @ 551, Pub. L. 104-104, 110 Stat. 139-142 (Feb. 8, 1996) (provision for "V-chip" to block sexually explicit or violent programs), but portends fundamental changes in the competitive structure of the industry and, therefore, the ability of individual entities to act as bottlenecks to the free flow of information, see id., Title III, 110 Stat. 114-128 (promoting competition in cable services). As cable and telephone companies begin their competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny. And as broadcast, cable, and the cyber-technology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others...

The "majority" isn't saying the technology has YET changed enough to justify new rules! Only that because changes are expected, the Court is justified in avoiding inflexible rules. The technological changes anticipated are relevant only to the ability of parents to block smut from children, not to the right of cable companies to censor prolife Republicans because television is no longer an important medium of expression! Nowhere does Denver suggest that the internet will make TV obsolete!

E. Does censoring in-house, vs. farming censorship out to government appointees, affect "public forum" status?

Mediacom gives, as another reason 47 U.S.C. 531 is unconstitutional:

...the fact that Mediacom is not a state actor and its access channel is not a public forum, as contrasted with the stipulated or assumed facts in Coplin v. Fairfield Public Access Television Committee, 111 F.3d 1395 (8th Cir. 1997) and other public access channel cases where the administrator is a government body, not the private cable company....

Mediacom looks at the Coplin case and says "they were treated as an open forum because in Fairfield, our company farmed out our censorship to a committee appointed by the city council, so it was a government doing the censoring, and a government can't censor viewpoints like a private business can. But here in Des Moines, our censorship is done in-house, so we should be able to censor anything we please."

No, the federal court didn't say the cable company branch in Fairfield should be treated as an open forum because it farmed out its censorship to government appointees. The court said it was because the cable company advertised itself as a public forum. (See quotes above, under IV A.) Just like the Mediacom branch in Des Moines.

In other words, Mediacom says, Fairfield's government agency had less right to censor than a private business, so the Coplin ruling restricting the Fairfield government's ability to censor does not apply to Mediacom in Des Moines, a private business. Mediacom says to restrict a private business would be like telling me I would have to carry lewd music in my music store; private businesses have more editorial control over the content of their merchandise, than government entities.

But Denver describes both these censorship arrangements, along with two more, but then proceeds to treat them all the same insofar as their rights to censor are concerned. (Throughout the decision, "public access" channels are lumped together with no thought of differing rights to censor based on who they have for censors.)

When a "leased channel" is made available by the operator to a private lessee, the lessee has total control of programming during the leased time slot. See 47 U.S.C. @ 532(c)(2). Public access channels, on the other hand, are normally subject to complex supervisory systems of various sorts, often with both public and private elements. See @ 531(b) (franchising authorities "may require rules and procedures for the use of the [public access] channel capacity"). Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality, or, in some instances, the cable system owner. See D. Brenner, M. Price, & M. Myerson, Cable Television and Other Nonbroadcast Video P6.04[7] (1993); P. Aufderheide, Public Access Cable Programming, Controversial Speech, and Free Expression (1992) (hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61 communities; the access manager was: a nonprofit organization in 41, a local government official in 12, the cable operator in 5, and an unidentified entity in 3);


Common sense would seem to fuel the opposite expectation from Mediacom's: that the cable branch which "goes the extra mile" and opens up its editorial functions to a public body, should not for that reason be punished with having to air even MORE smut, but should receive more slack than the cable branch that censors without any public input. Common sense would suggest the Fairfield system, with public input in defining "prevailing community standards", should be more trusted to truly reflect "prevailing community standards" than in-house staff censors. And yet Mediacom's Des Moines branch actually argues "We should have the right to censor all the viewpoints we want" because it has taken the precaution of prohibiting any public input into its censorship, which makes the channels "private business property" rather than a "public forum", removing any limit whatsoever on their right to censor! They shouldn't even have to provide PEG channels!

But the federal law doesn't say anything about whether the censorship is conducted by a private business or government appointees: it says whoever does the censoring, must abide by these rules. The federal law governs both arrangements equally.

One statement in Denver flatly states that farming out censorship to public entities is the better system because (1) it more effectively filters out real smut from getting to children, and (2) it is less likely to stop "borderline offensive" programs which really should not be censored. In other words, the Justices trust public editorial arrangements more than in-house censors, which again makes it highly unlikely they would jump all the way to trusting cable companies to censor not just smut but everything they please, without limit! The plurality here observers that it is not Public Access channels -- which have public editorial arrangements -- that cause smut problems, but "leased access" channels, which are always censored in-house:

Finally, our examination of the legislative history and the record before us is consistent with what common sense suggests, namely that the public/nonprofit programming control systems now in place would normally avoid, minimize, or eliminate any child-related problems concerning "patently offensive" programming. We have found anecdotal references to what seem isolated instances of potentially indecent programming, some of which may well have occurred on leased, not public access channels. See 138 Cong. Rec. S642, S650 (Jan. 30, 1992) (statement of Sen. Wirth) (mentioning "abuses" on Time Warner's [*66] New York City channel); but see Comments of Manhattan Neighborhood Network, App. 235, 238 (New York access manager noting that leased, not public access channels, regularly carry sexually explicit programming in New York,....

Justice Kennedy, analyzing the plurality's position further, says the plurality believes public editorial schemes also reduce the risk of unconstitutionally censoring acceptable programs:

The plurality declares @ 10(c) unconstitutional because it interferes with local supervisory systems that "can set programming policy and approve or disapprove particular programming services." Ante, at 32-33. Replacing these local schemes with a cable operator veto would, in the plurality's view, "greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear,"...

F. What does "constitutionally proscribable" add, to the grounds of censorship in federal law?


Mediacom says 47 U.S.C. 531 may be amended by added, as grounds of censorship, anything which is "constitutionally proscrible":

(c)the reality that Judge Bremer and the Court of Appeals for the Eighth Circuit in Coplin recognized that the government body administering the access channel there could control content of an access channel where that content is "constitutionally proscribable" Id at 1402-03; see generally 42 U.S.C. 544(d).


Indeed, there was the implication, in the fact the Coplin court toiled so carefully over the issue of privacy, that had the Court decided privacy was invaded, this "extraordinary problem" would have added a fifth ground of censorship to the law. But so far it hasn't so decided, and it hasn't, yet, added that fifth ground of censorship to the law.

G. Denver's "Hypocrisy" Standard


Mediacom must show that which it desires to censor is significantly worse than the material it routinely broadcasts:

A cable system operator would find it difficult to show that a leased access program prohibition reflects a rational "policy" if the operator permits similarly "offensive" programming to run elsewhere on its system at comparable times or in comparable ways.

It would be even more "irrational" for a cable company to censor, from airing while most children are watching, the very same photographs it had, itself, already aired on three of its other channels during the 6 o'clock news! And not even because it was forced to by some court or "local authority", but because it CHOSE to!

And the contours [limits] of the shield [from cable company liability for over-censoring] --reasonableness--constrain the discretion of the cable operator as much as they protect it. If, for example, a court had already found substantially similar programming to be beyond the pale of "patently offensive" material, or if a local authority overseeing the local public, governmental, or educational channels had indicated that materials of the type that the cable operator decides to ban were not "patently offensive" in that community, then the cable operator would be hard pressed to claim that the exclusion of the material was "reasonable." We conclude that the statute is not impermissibly vague.

In some high school driver's education classes, students watch videos portraying car accidents: some related to drunken driving, some related to collisions with trains. These videos can become quite graphic, and yet they are being shown in public school classrooms! Nobody questions it, though, because the intent of the video is to educate them on the consequences of careless driving, in order to save lives.

Communities across America have NOT found photos showing slain babies "patently offensive" by any recognizable legal standard. Such photos are documented as having been displayed in August on the tape I submitted November 13, which Mediacom rejected, and such photos have been routinely displayed at Planned Parenthood for years, yet there is no record of arrests for their display. Operation Rescue West even bought a semi to tour the nation showing enormous blowups of the photos. Missionaries to the Unborn likewise holds "Show the Truth Tours" across America, a significant part of which is simply holding up the signs for the viewing of heavy traffic. On rare occasions arrests are made, but charges are always quickly dropped. The pictures are definitely "offensive", in a general sense, to about half of Americans, while their message is respected by the other half. They are definitely not "patently offensive" in any legally recognized sense.

Denver observes that there should be little danger of over-regulation of smut, since cable companies carry a good deal of it themselves:

Moreover, although the provision [PERMITTING rather than REQUIRING cable companies to ban smut] does create a risk that a program will not appear [that contains smut, but maybe not enough smut to merit being censored], that risk is not the same as the certainty that accompanies a governmental ban. In fact, a glance at the programming that cable operators allow on their own (nonaccess) channels suggests that this distinction is not theoretical, but real. See App. 393 (regular channel broadcast of Playboy and "Real Sex" programming).

This principle applies equally to my video of abortionists' customers, taken in the best traditions of mainstream American journalism. Aside from viewpoint, no journalist I asked could explain what distinguishes my video from video taken by news reporters all the time, which Mediacom happily airs on all its news channels. Over half the people in the news would rather not be there! If journalists could only write about people who are glad to be written about and photographed, the "news" that keeps America vigilant and free would be a thing of the past.

The reason America's Founding Fathers made protection of offensive speech their FIRST Amendment is because they realized the offensiveness of speech does not necessarily indicate its uselessness. They knew some of the most beneficial speech to mankind is some of the most offensive. Their hero was Jesus, who was crucified for His speech. Perhaps "offensive" should mean that which offends many but which many others can rationally justify, while "patently offensive" means what no reasonable person can rationally justify.

H. Denver's "Extraordinary Problem" Standard Favors PEG Continuation


Even if the Court finds that my photography presents an "extraordinary problem" justifying the setting aside of the federal law which Mediacom is violating, any attempt to completely eliminate PEG channels will have to deal with the facts in the Denver record that on the whole, PEG channels have simply not been the source of problems. The problems have been on leased access channels, not PEG channels.

...noting that leased, not public access channels, regularly carry sexually explicit programming in New York, ...relevant "abuses" likely occurred on leased channels)....The Commission itself did not report any examples of "indecent" programs on public access channels. ...did not identify any "inappropriate" programming that actually exists on public access channels). ...("Our access channels have been on the air since 1986 without a single incident which would be covered by Section 10 of the new law"); ...("In 10 years of access operations with over 30,000 access programs cablecast not a single obscenity violation has ever occurred");... "there has never been a serious problem with the content of programming on the channel").

V. My photos: "Extraordinary problem", or "religious and political speech"?


My photos are not the smut that concerned the Supreme Court. They are not "obscenity". They are not "sexual material".

What does that leave?

Their political message is clear, and even arouses passions in the same proportion, to other photography, as the issue of abortion arouses during political dialogue, in proportion to other political issues. Their religious message is equally stark. In fact, no political issue would even exist, were it not for Scriptures interpreted by many as defining unborn babies as human souls with purposes on earth from even BEFORE conception. They even divide Christians from those who preach them and those offended by them; just as even the Blood of Jesus has come to "offend" some Christians to the extent the word "blood" is filtered out of some new hymn books!

Why do the photos "offend"? Why are they hated with a loathing that frustrates reason?

"Taken as a whole", that is, in the context of my whole show, do the photos "lack serious literary, artistic, political, or" religious value? (The Miller obscenity test, within the quotes here, doesn't mention "religious value", because it would be blasphemous to even LOOK for religious value in pornography! But of course freedom of religious expression is protected by the First Amendment along with Freedom of Speech.)

Why would I continue this lawsuit even though it puts at risk not just the future of my own cable access show, but all cable access shows across America, a First Amendment blow over which I would grieve profoundly? Among the most tragic consequences of this worst case scenario is that most of the churches currently airing their services on cable access TV could no longer.

That you may understand the importance, to me, an out-of-the-closet Christian, of the photography, I want to explain that I fully understand the risks I take, and how possibilities I dread may be made possible by continuation of my lawsuit.

I perceive that Mediacom is fully prepared to argue this case all the way to the U.S. Supreme Court if necessary, a journey for which I am poorly equipped, yet a journey I must travel alone because U.S.C. § 555a(a) prevents me from recovering either monetary damages or attorney fees, and I certainly don't have deep enough pockets to pay for an attorney myself. While at some level there probably is a wish within Mediacom boardrooms that I would drop this suit, it is only my continuation of this lawsuit, over these particular issues, which offers them a springboard to a result which would bring all cable operators much rejoicing: the end of Public Access Television programming. No one likes to be forced to give anything away for free. Radio and TV broadcasters would prefer not to be forced to carry free public service announcements, and to give equal time, under certain circumstances, to opponents of federal candidates. Hospitals would prefer not to have to treat poor people in emergency rooms. Attorneys don't want their pro bono work to get out of hand.

The reason my photography could become the cable industry's latest hope for ending Public Access channels, is also the reason this lawsuit must continue. First I will put in perspective the photos showing what abortion does to babies.

Gory movies depict carnage as bloody or worse, and people PAY to see it! They call it "entertainment"! They even pay Mediacom extra to see it on their "Pay Per View" plan! So why the difference? Why does Mediacom rake in the dough to market carnage of adults, but pay out the dough to defend its ability to censor carnage of unborn babies? Why did Mediacom air clips of my photos as it carried the 6 pm newscasts of TV 8 and TV 13, and CNN International, without requiring those broadcasters to blur the photos, but when I wanted to replay those very same clips, Mediacom would rather go to federal court than allow me to air them! Why? What rationale can they present? What can account for such hypocrisy?

Could it be, not the photography, but the viewpoint? But if it is the viewpoint, what IS that viewpoint, and what gives it the power to turn normally decent, reasonable citizens into lawbreakers? And why would I want to unleash any power that produces such an effect?

The people of Des Moines respect the anti-tobacco billboards that show what cancer caused by tobacco does to human faces. Are the billboards any less grisly than the pictures of slain babies? Not much, if any; yet no one defaces the billboards. Why not? Could the difference be, not the photography, but public openness towards the viewpoint?

The evidence that it is the viewpoint is that it is impossible to craft a viewpoint-neutral regulation which targets gory photos showing what abortion does to babies, which would not describe scenes from half the movies Mediacom sells! (See "Denver's Hypocrisy Standard", above)

In fact, it would be impossible to craft a viewpoint-neutral regulation against the information contained in those photos, without outlawing the Stenberg v. Carhart decision! (The decision which overturned Partial Birth Abortion bans of 30 states, in the process describing what they were protecting in terms graphic enough to make a mortician wretch.)

I have been slow, myself, to comprehend the value of this photography. When I first saw it, it did not produce, in me, the revulsion which others report, so I did not give serious thought to its effect which I observed in others. I just assumed they were overly sensitive rednecks succumbing to Mob Fever, egged on by news stories so horribly slanted as to incite violence against those who carried the signs by dehumanizing them. I reasoned that the news stories were prejudiced by abortionist advertising dollars, and that the rage of abortionists against the photos is only proportional to their effectiveness ins reducing abortionists' business. I thought it was all money. I marveled, but did not understand, the reports of those who carried such signs, of people who walk up to their photo-covered vans and use their car keys to leave a long scratch in the paint; or while driving alongside, throw their milk shake or pop through their windows on to the driver of the photo-covered van; or who break windows, curse, threaten to kill, etc. When I observed newspapers and TV stations refuse to carry advertising that included such photos, (except when forced to by "reasonable access" laws for federal candidates), I assumed Planned Parenthood advertising had prejudiced them against our viewpoint. I underestimated the power they discerned in our photos.

Frankly, it was the mindless, irrational, absolutist censorship of Mediacom in August which brought home to me that there is something about these pictures which merit another look. In the seven years of my TV show, I have shown such pictures perhaps seven times. Perhaps more; but not much more. And it was never my intention to show them very much more often. It's like my use of Scripture. I don't quote it ALL the time, and I don't quote it when it is not relevant. The pictures, likewise, are not always relevant. Were I to insert them in the middle of a show on how to repair a saxophone, they would be confusing because they have nothing to do with saxophones. But when Mediacom announced they would absolutely not air one second, on my show, of the same photos they themselves carried for TV 8, TV 13, and CNN International, and are now in court to defend that censorship, it finally sunk in that this cannot be accounted for by mere prejudice in the ordinary sense. This is fanatical. This is extremist. This is beyond reason. Just like the vandalism and blasphemies reported by those who carry such signs all the time.

There remains only ONE PLAUSIBLE theory which can account for such powerful, reason-crippling emotions. It relates to religious expression.

The message of the photos is that abortion is not merely murder; it is the most grisly murder imaginable, evoking images of our barbaric pre-history. Now what viewpoint, in the observer of this message, could possibly so infuriate that person as to render him an irrational lawbreaker?

There are only three plausible viewpoints capable of such incendiary reaction to the photos.

One is the commitment to justify involvement, at some level, in defending abortion. It could be someone who has had an abortion, or helped someone else get an abortion. It could be a kid who doesn't want his girlfriend to have abortion unavailable or she might not go to bed with him. It could be a father or even a preacher who encouraged a girl to get an abortion so as to spare the church, or the family, the embarrassment of admitting the church pianist committed adultery. It could be the lawmaker who won't have the funds for reelection without abortionists' contributions. It could be the judge who feels obliged to support the most divisive decision in the history of American jurisprudence.

A photo of a slain baby assaults the peace of this viewpoint as much as the "old fashioned" preacher pointing at YOU and warning that YOU are going to Hell! The photo screams to those involved at abortion, "THIS is what you are defending! Stop! You cannot justify this! It's not too late to repent, but you must stop!"

The second plausible viewpoint capable of such fireworks, is some version of Relativism, whose cousin is Politeness. Such people want life to hum at a constant pitch, no boat rocking, no screaming, no war, and most important, no disrespect. All viewpoints are equally legitimate, no smile is phony, and the First Amendment protects the expression of every belief (except the belief that another belief is wrong). A relativist can even be a prolifer, and even many Christians are infected with some degree of relativism, so that even some prolifers hate those carrying such signs, giving, as their reason, not any theological error in the message of the signs, but the anger the message provokes among those defending what God calls abominable.

To the relativistic view, a photo of a slain baby screams "The viewpoint responsible for this is not legitimate! This is murder, however legal it may be, and being polite and "affirming" towards a murderer is being an accessory to murder!"

The third plausible viewpoint capable of such fireworks, is simply the desire to stay out of the way of either side so the money can continue flowing and business may be conducted. This can be a completely mercenary outlook. Such people may react to these pictures with the same condescension they feel for a bad account, or a successful competitor.

Mediacom may be motivated by a mixture of these viewpoints. But to the extent it is only this last, I am sympathetic to the interference with comfortable routines which a few angry callers may cause. But Mediacom had no trouble facing an angry public in order to keep MTV on. Mediacom should understand it eggs on the subscribers threatening to cancel, the hateful anonymous cursing, by representing to the world that these pictures, which they themselves carried for TV 8, TV 13, and CNN international, besides comparable carnage they rake in the cash for under the name of "entertainment", that THESE pictures of mine are so horrible that no civilized person would ever present them! Of course, then, viewers reason, if they are that horrible, then to still let that creep stay on the air deserves a cancellation threat!

Here is God's "theory" about what motivates hatred of even the most wonderful things:

John 3:16 For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. 17 For God sent not his Son into the world to condemn the world; but that the world through him might be saved. 18 He that believeth on him is not condemned: but he that believeth not is condemned already, because he hath not believed in the name of the only begotten Son of God. 19 And this is the condemnation, that light is come into the world, and men loved darkness rather than light, because their deeds were evil. 20 For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved. 21 But he that doeth truth cometh to the light, that his deeds may be made manifest, that they are wrought in God.

Were I to blaspheme unions or Moslems, perhaps my property would be vandalized; but the likelihood would not be as great because abortion is much darker, and far more are darkened by it.

Of all groups in America easiest to blaspheme without fear of violent retaliation are Christians, because the New Testament teaches restraint in the use of force. When Christians take a stand, it is first by proclaiming truth, and as a last resort, not a first resort, going to court, as I have finally done. Not by violence. Not by angry, anonymous, profane telephone threats.

But if this clash of viewpoints is indeed what accounts for such strong public feeling, then what is the redeeming value of showing these pictures that presses me to risk so much for them?

I have already said the pictures scream to those involved in abortion, "THIS is what you have done! Try justifying THIS!" and to relativists, "The viewpoint responsible for this cannot be legitimate!" To both the pictures declare "There is Right and Wrong. This is Wrong. Right or Wrong cannot be objectively Right or Wrong, as opposed to a personal 'my religion is right for me', without the existence of God who declares what is Right and what is Wrong. God has declared this is wrong." To reject the evidence of these pictures is to reject God Who is Love, 1 John 4:8, 16, and who loves babies so much that He said

"Jeremiah 7:31 And they have built the high places of Tophet, ... to burn their sons and their daughters in the fire; which I commanded them not, neither came it into my heart." (Repeated in 19:5 and 32:35) (These photos are virtually always displayed in the context of Scriptures which make these connections clear.)

Abortion is the ultimate dehumanization. To consider an entire category of living creatures not worth deciding whether or not they are human beings, or worth rescuing from slaughter, is dehumanization! Dehumanization erodes the very fabric of civilization. Civilization cannot exist without cooperation, which cannot exist without a sense of responsibility in citizens to honor contracts, tell the truth, and "serve" (offer "services" to) one another. America is the most prosperous and free nation in the world for the longest period because it began as a Christian nation, and the Second Greatest Commandment of Christianity is "Love thy neighbor as thyself", the principle which is the glue of civilization as we know it. Abortion turns from the Love of God and Neighbor to attack our very prosperity and freedom.

These photos reach hearts no reasoning can reach. These photos produce anger in those who respond to evidence by further hardening their hearts against God, but they produce repentance in many others, and many friends who carry such signs have told me of mothers who came to them later to introduce them to the child they decided not to kill as a result of seeing the pictures!

The pictures show what is obviously a Human Being, with perfectly formed features testifying to their creation by God, in the Image of God, but slaughtered to the specifications of the Devil. The pictures say a baby ought to be loved, not mutilated. The pictures honor God, pleading with America to abandon the sin which Jeremiah indicates troubles God most!

The pictures rescue the perishing, turning sinners back from the precipice of Hell.

The pictures reveal information words cannot, and to people whose hearts are too hard to read words. Stenberg v. Carhart certainly came as close as words can come, to revealing what these photos reveal. But the impact of the photos, as compared with the impact of words, may be compared with the impact of words warning children not to swim in the Everglades, compared with the impact of showing the children videos of alligators attacking human-sized animals! (Or even children!) There is little comparison!

The photos are America's most succinct display of evidence in support of the view expressed by Almighty God of the Abomination most troubling America today.

2 Peter 2:21 says the commandment to turn away from unrighteousness is "holy".

2 Peter 1:8-9 says the "calling" we received from God (also called "the testimony of our Lord") -- that is, the message that finally broke through our hard hearts and restored us to Him -- is "holy".

The photos, both of slain babies and of abortionists' customers, command the attention of many, calling them to turn away from unrighteousness! Many have heeded the call, and brought to the arms of those displaying such messages the babies saved by the mother's sight of the "disgusting, horrible pictures"!

Such photography saves lives. Both the physical lives of babies, and the souls of their mothers!

According to this Biblical criteria, the photos are holy, in the sense that the name of God is holy.

In what sense is the Name of God Holy? Is it because God has a self-esteem problem, so that he needs the affirmation of men? Is God so vain that the reason God wants men to regard Him as holy is to stroke His ego? That view, far from reverence for His Holiness, is blasphemy! God knows the hearts of men better than to "commit himself unto them". Matthew 15:8, John 2:23-25. Rather, the reason God insists man regard His Name is Holy is because God loves us, and does not want us to suffer. When a child turns up his nose at wholesome food, the parent cannot stand idly by and allow that attitude to become a habit! The child MUST learn to treat wholesome food as wholesome, or the child will die young! It is not that the child must eat only wholesome food, or must eat constantly, but the child must know where to find nourishment when nourishment is needed. In THAT sense the Name of God is Holy, and the photos which witness to the sin which most shocks the Heart of God, according to Jeremiah, are Holy.

The photos therefore must be treated as Holy. I cannot permit them to be blasphemed without protest. The Name of God is Holy, which doesn't mean I need to insert the name of God in every sentence, but when I do, I speak with reverence. It's not that the photos must be shown all the time, but they cannot be blasphemed without protest. I cannot stand idly by when Mediacom blasphemes them, asserting they are so outrageously offensive as to even justify their violation of federal law, and helps persuade an entire nation to blaspheme the photos with them! I cannot meekly say "I'm so sorry, I didn't mean to hurt your feelings. You're right, I ought to be ashamed of offending you. These warnings from God really don't belong in public. I can't think why God even cares about people that little, anyway."

But if these are the messages of the photos, and their effect upon people, and my true reasons for standing up for their legality, then how could these photos become Mediacom's latest hope for overturning the law that requires Public Access channels?

The loathing I have seen, as I have said, frustrates reason. I have seen a kind of "reasoning", the reaction to truths such as are at issue here, which I will try to put in words.

People will say "The pictures are obscene! They are an invasion of privacy! They threaten the lives of innocent mothers! I've got a right to my own religion!...etc, etc, etc."

I might respond, "Are you more upset at the message than at the messenger? Do you think someone has a right to privacy, in public? Who has ever justified, or suggested, attacking mothers? You have the right to jump off a cliff, too, but that doesn't protect you from getting smashed...etc.

People answer "The pictures ought to be sued! They ought to be arrested! They should never be shown on TV!"

I counter, "But this photo showing what abortion does to babies was shown on the 6 o'clock news. Why is it so terrible that I should never be allowed to air it on my show? These other photos showing abortionists' customers follow American journalism's finest traditions, in reporting people associating with the most controversial business in Iowa. News reporters take pictures, all the time, of people who don't necessarily want their pictures taken. Why is this such an 'invasion of privacy' that I should not be allowed to air it?"

Their answer: "It just is!"

That's what I fear: the "It Just Is!" doctrine.

I am afraid that my grandchildren will learn in school about the "It Just Is!" test developed in the famous Leach v. Mediacom case.

I have found it a popular doctrine, capable of popping up anywhere. Impossible to keep down.

Conclusion

However, I am optimistic that the Federal Court track record of protecting even speech which some find offensive, with a dedication that stretches even my own comprehension, will continue in this case and that my photographic messages, with their strong religious and political components, will not be allowed to remain the subjects of Mediacom censorship.

The Peter Zengler case established Freedom of the Press in America by arguing that the truth of a statement should be a defense against libel. Since then the Truth has been made a defense against many censorship efforts, and ought to be a defense against the censorship Mediacom pursues. The many sermons which my photography proclaims are all true. America benefits when the truth is expressed.

Dave Leach, Plaintiff

4110 SW 9th

Des Moines Iowa 50315

Leach@Saltshaker.US

244-3711w, 256-0637h

PROOF OF SERVICE

The undersigned hereby certifies that a true copy of Plaintiff's Designation of Witness was served upon one of the attorneys of record for each party to the above entitled cause by enclosing the same in an envelope addressed to each such attorney at his/her last known address as shown below, with postage fully paid, and by depositing said envelope in a United States Post Office depository.

William J. Hunnicutt

Michael A. Giudicessi

400 Capital Square/400 Locust

Des Moines IA 50309

Attorney for Defendant

Steven Colloton

Gary Hayward

U.S. Attorney

Southern District of Iowa

286 U.S. Courthouse Annex

110 E. Court Avenue

 

 

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