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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