This is the final brief I will be allowed to file before U.S.District Judge Vietor rules sometime in January. It may be that he will rule only on the "preliminary injunction" at that time, so that I will have opportunity to enter more argument before he rules on the "permanent injunction". I don't know. After I filed this brief, Judge Vietor allowed Mediacom to respond, but limited their response to 5 pages.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

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

Post-Trial Brief

Civil Action No 4L02-CV-70545

________________________________________________________________________

Contents: (Responses to Mediacom's Reasons, in its November 20 Trial
Brief, not to grant me relief)

(Page) 1. Obscene

5. Nudity

6. Indecent

15. Graphic Photos

17. Potentially Obscene

18. Intimidate

19. Inferential advocacy of violence

24. Threat Speech

26. U.S. Marshals

27. Deterrence

27. Libel

29. Army of God

31. Loss of Advertising

32. Coplin's Content Regulation

34. Stalking

34. The Scope of Mediacom's Targets

36. Original Issue?

36. Compelling Speech

39. Ripeness and Rottenness

41. Congress Doesn't Really Care

41. $50,000 Bond

43. Conclusion

44. Appendix

Obscene. Mediacom's November 20 trial brief flatly accuses my
photography of being "obscene" 10 times, of the 25 times the word
appears in the brief. Absent from the brief is some legal theory or
precedent explaining why material without any sexual content should be
construed as "obscene", contrary to pornography case law such as what
Mediacom acknowledges as "The classic definition for obscenity [as] set
forth in Miller v. California, 413 U.S. 15 (1973)". The closest Mediacom
comes to a legal argument is a trail of clues scattered throughout its
brief. One clue is Mediacom's reliance upon "common sense", rather than
Courts, for understanding legal terms. Another is how it uses "context"
to establish "obscenity". Courts use "context" as a source of evidence
that pornography is NOT obscene. Mediacom uses "context", through the
filter of its "common sense", to look at material that is not sexual at
all and determine that it IS obscene:

Mediacom believes that both the content and purpose of Plaintiffs
proposed programming lend support to the conclusion it is obscene,
although Mediacom will stipulate that the "obscenity" is likely more in
a common sense manner rather than under a standard requiring that
obscenity be limited to sexual material appealing only to a prurient
interest. (Further, while the Cable Act on its face gives Mediacom the
ability to reject indecent speech, the Denver Area case seemingly took
away that authority.)

While at first blush it might seem presumptuous of Mediacom to openly
prefer another definition of "obscene" to the Supreme Court's, Mediacom
theorizes it has precisely that authority to reinterpret basic legal
terms, through the "reasonably believes" clause (another clue):

While Mediacom concedes that there is a difference under the
Constitution between indecent speech and that deemed obscene, ...the
question in a case such as this then is who in the first instance
decides whether something is obscene.... In this case, Mediacom
reasonably could and did conclude....the question is not whether
Plaintiffs conduct is capable of supporting the conviction for violation
of the Freedom of Access to Clinic Entrances Act or is capable of being
enjoined as hate speech -- the operative question here is whether it was
reasonable for Mediacom to conclude that Plaintiffs speech constituted
unprotected speech Mediacom made that determination. That judgment had a
reasonable basis in fact and in law....

Mediacom says it is unimportant whether the Court judges my photos
actually create liability under FACE or some uncited "hate speech" law.
The important thing is that Mediacom's "judgment" is that my photos
subject it to liability. Mediacom clearly states its argument is not
whether the law actually permits this censorship, but whether Mediacom
has a "reasonable basis" for thinking it does. Mediacom is actually
arguing that there may well be a great gap between Mediacom's
understanding of the law, and the Court's balancing of the competing
free speech rights of defendant and plaintiff, but that doesn't matter
because compliance with the law is not the important thing, but whether
Mediacom's misunderstanding of the law is "reasonable".

But where may we find a "reasonably believes" clause in law or case law
to support this theory? Mediacom doesn't say, but I found this sentence
in Denver Area Educational Telecom. Consortium. Inc. v. FCC, 518 U.S.
727 (1996): (this is the first half of the statement)

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....

But where in the statute may this "reasonably believes" clause be found?
In 47 U.S.C. 532(h), where it is solidly bonded to a context of raunchy
sexual material. Earlier in the paragraph, however, is the similar "in
the judgment of" clause, linked with "obscene", although that word, too,
is surrounded by a context of raunchy sexual material.

Any cable service offered pursuant to this section shall not be
provided, or shall be provided subject to conditions, if such cable
service in the judgment of the franchising authority or the cable
operator is obscene, or is in conflict with community standards in that
it is lewd, lascivious, filthy, or indecent or is otherwise unprotected
by the Constitution of the United States. This subsection shall permit a
cable operator to enforce prospectively a written and published policy
of prohibiting programming that the cable operator reasonably believes
describes or depicts sexual or excretory activities or organs in a
patently offensive manner as measured by contemporary community
standards. (47 U.S.C. 532(h) (1994))

But what about the Denver quote that "we concede that the statute's
protection...is somewhat diminished...." Is it? Has the Court no
authority, under the law, to CORRECT Mediacom's misunderstanding of the
law from this point forward? Yes, it does. The rest of the Denver quote
says "reasonably believes" is not a license to expand the grounds of
censorship beyond what the Court believes are their lawful limits.
Rather, the purpose of the clause is merely to shield cable companies
from constantly being in court over where exactly to draw the floating
line between raunchy, filthy, constitutionally unprotected sexual
material, and raunchy, filthy, constitutionally protected sexual
material.

"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." (Denver)

There are no grounds for applying the latitude of the "reasonably
believes" clause to political or religious speech. But Mediacom reasons
on, grudgingly permitting the Court to decide whether my photos are
obscene if it insists, but limiting the Court's definition of "obscene"
to "prevailing community standards", leaving off Miller's additional
condition that it appeal to "prurient interests". Then Mediacom insists
the burden is on me to prove my photos do NOT fall below "prevailing
community standards" for non-sexual material.

Thus, Mediacom submits that if the cable operator is the arbiter of
obscenity and indecency and is permitted to make a conclusion along
those lines, it has done so. If, on the other hand, the Court is the
arbiter of obscenity, using prevailing community standards, Mediacom
urges that Plaintiff bears a burden of demonstrating that this speech
does not fall into that unprotected category. Plaintiff has not
satisfied that evidentiary burden at this preliminary injunction stage.

Mediacom had "stipulated" that its definition of "obscene" is unlike the
Court's. I, too, will stipulate: that if the federal law's category of
"obscenity" may now be construed to mean "whatever 51% of the community
hates", then photos of slain babies are now "obscene", along with Polk
County Republicans, telemarketers, TV commercials, and hikes in cable
rates. But here is another clue, about how public sentiment ought to
determine whose political and religious views to censor:

Moreover, the denial of the requested injunctive relief enhances the
public welfare, rather than harming it. Here, the granting of
preliminary injunctive relief would allow Plaintiff to usurp the
editorial rights of Mediacom and would require Mediacom to disseminate
objectionable segments of videotape to a public that may in fact find it
indecent, harmful to children and unacceptable.

What legal grounds are these? As Mediacom pointed out, Denver struck
down "indecency" out of the three grounds of censorship in 47 U.S.C.
531, leaving only "obscenity" and "nudity". Now we have "harmful to
children"? As measured by WHAT? "Unacceptable"? To WHOM? To "a public
that MAY...find it" unpopular? Who will speak for the public as it
reaches this finding? Mediacom?

If you ask the headline-incited public whether my photos are "indecent",
rather than courts or laws which are the product of many generations of
public wisdom and decisions, the public may vote me down. But perhaps
not. Americans understand the value of free speech to express minority
political and religious views. Many even understand the practical reason
for it: that when individual public officials, bureaucrats, or even
private businesses are given the power to throttle political or
religious speech, the danger is that the most important Truths may be
the first to be throttled. As a wise man said, "I personally find Tom
Dashle offensive, but they keep putting him in the news."

Nudity. The only motive I can imagine for this next clue is to make the
defense more dramatic, since it certainly doesn't make it more logical.
The photos of slain babies are "nudity".

This Court can make the same assessment of the unedited videotape
segment of the "Uncle Ed. Show" rejected by Mediacom in this case. ....
By viewing the videotape originally submitted by Plaintiff, this Court
can determine that the segment rejected by Mediacom is indecent,
contains nudity and may well be obscene. Thus, this Court can see for
itself why Mediacom was statutorily authorized under 47 U.S.C. 531(e)
and 47 U.S.C. 544(d) to reject Plaintiffs programming as indecent or
obscene.

Friends joked how Mediacom might say the photos of slain, dismembered
babies could be censored under 47 U.S.C. 531(e) because they contain
"nudity". At least we thought we were joking.

Nude healthy babies are not "nudity" in the courtroom sense; they are
the stuff of baby products commercials and Hallmark cards. They are
cute, by "prevailing community standards". To get all up in a tissy over
the nudity of babies invokes the Denver "Hypocrisy Standard" (explained
in my November 19 Trial brief): Mediacom finds itself seeking to ban a
degree of infant "nudity" of which it warmly approves on its other
channels, which provide a different political and religious context. Of
course, the babies in my photos are not healthy! They are not cute.
Worse than that, the political and religious action for which their
blood cries out is not so universally "ooohed" and "aahed" over. But
they are no more "nude" than the healthy babies.

Indecent. Even though Mediacom acknowledges that Denver found
"indecent", as a grounds for cable company censorship, "violated the
First Amendment", Mediacom continues throwing around the word as if it
were relevant to this case. It used the word 20 times, as part of its
reason for censoring my photos, not counting the times it quoted a law
or precedent which included the word along with other terms more
relevant to this case. It is as if Mediacom senses its fact case for
"obscene" is not solid, and its law case for "indecent" is nonexistent,
but if you add them together you might have a case, on the established
principle of well funded bureaucracies that "0"0'1". Here is Mediacom's
acknowledgment that its charges of "indecency" are irrelevant:

(Further, while the Cable Act on its face gives Mediacom the ability to
reject indecent speech, the Denver Area case seemingly took away that
authority.).... The various indecency and unprotected speech provisions
of the Cable Act were the subject of Supreme Court review in Denver Area
 Educational Telecommunications Consortium. Inc. v. F.C.C.. 518 U.S. 727
(1996)(hereafter the "Denver Area case"). That case upheld some
indecency and editorial control provisions of the Cable Act and found
others unconstitutional in plurality opinions of a splintered court.
What was clear in the Denver Area case is that the Court saved for
another day the constitutionality of the Cable Act requirements for
public access channels and its prohibition of editing of public access
channel content.

What Denver found constitutional was "indecency" as a standard applied
to leased access channels. What Denver found unconstitutional was
"indecency" as a standard applied to public access channels. This case
concerns a public access channel, over which the Supreme Court found
censorship of "indecency" unconstitutional. Denver did not "save for
another day the constitutionality of the Cable Act" in any sense that
the Court ever expected or wanted to see such a day. Only three justices
expressed any interest in such an inquiry, as my November 19 Trial Brief
explains, and as is observed in 247 Demarest v. AthoL/Orange Community
Television. Inc., 188 F.Supp.2d 82, 99 (D. Mass. 2002) in response to
the "conundrum" of whether to call cable companies "private businesses",
"state actors", or "public forums":

Fortunately, this motion does not require the court to resolve the
Denver Area conundrum. Six Justices of the Court agree, at least, that
heightened scrutiny applies, as can be seen from the opinions of
Justices Breyer and Kennedy. Six Justices also agree that individual
public forum cases provide useful analogies when analyzing First
Amendment challenges to restrictions on PEG channels. See 518 U.S. at
747 (plurality opinion)("Pacifica provides the closest analogy"), and
518 U.S.at 791 (Kennedy, J., concurring in part and dissenting in
part)(discussing and comparing public forum cases). Thus, a court that
analyzes a PEG restriction with "heightened" scrutiny, and by analogy to
other cases can be sure, at least, that its standard will not be overly
demanding. Viewed in this light, the issues raised by this case are not
particularly difficult.

Here is the other place where Mediacom admits knowledge of Denver's
 repudiation of the "indecency" standard on public access channels:

(Footnote 6) The distinction between indecent programming and obscene
programming may be of importance here given the splintered decision in
the Denver Area case. Mediacom recognizes in light of the plurality
opinions in the Denver Area case, that the right to edit or reject
programming which is indecent but not obscene may have been found to be
unconstitutional, i.e., obscene content could be rejected but indecent
speech could not.

"MAY have been found to be unconstitutional"? Mediacom doubts? There is
no doubt in Denver, which is so clear that even the annotated 47 U.S.C.
531(e) can confidently post this case summary: the "indecency" standard
for public access channels "violated First Amendment, since such
prohibition had not been shown to be necessary to protect children or
appropriately tailored to secure that end."

Not that I myself would be sympathetic to imposition upon Mediacom to
air anything truly indecent, such as MTV. But Mediacom has difficulty
distinguishing between the message and the messenger. It is the reality
of torturing babies to death which is indecent, not the appeals to face
our responsibility for the tortures. The Demarest court gave the example
of news coverage of mounted police beating peaceful civil rights
marchers with nightsticks. Indecent? Yes. Revolting to the nation? Yes.
Were the cameramen the culprits? Such a thought never occurred to anyone
in the 60's. Fortunately Mediacom was not there to suggest it.

Demarest eloquently explains how some of the most revolting video in
news history can become some of America's most valuable video because it
moves America to address great evil: dehumanization of Blacks, in that
case; dehumanization of unborn babies, in this case. The dehumanization,
in either case, was not perceived as such by most until after seeing the
images.

Demarest used the example to explain why censorship of video of "illegal
acts" would be harmful to America (the protesters who were beaten were
marching "illegally"). (It is interesting that "material soliciting or
promoting unlawful conduct" was one of the FCC's grounds of censorship
overturned by Denver.) Yet it was the legal acts, of police beating the
"lawbreaking" Blacks, which the nation found "revolting" and
"disgusting", to use two words sometimes used to describe my photos.
Surely the police in the video thought the airing highly inappropriate;
just as those involved in abortion today say film of their handiwork is.
But Blacks were certainly grateful! Just as unborn human beings express
gratitude for life, after they have been allowed to live long enough to
talk.

In short, the Demerest example explains the value to America of pictures
showing what abortion does to babies, even though the reality they
expose "revolts" and "disgusts" those whose hearts ache for human beings
tortured to death, and even though the exposing of reality allegedly
"revolts" and "disgusts" those wishing to justify abortion, for reasons
which include involvement with abortion. Here is the Demarest example:

[The rule against filming illegal acts] would have restricted PEG
producers from capturing on film some of the most important moments in
American history. For example, an AOTV producer would have been
forbidden from filming John Lewis as he marched on Bloody Sunday.
According to Mr. Lewis, something about the Bloody Sunday attack in
Selma, Alabama, and the fifteen minutes of film footage that accompanied
the ABC television report "touched a nerve deeper than anything that had
come before." John Lewis & Michael D'Orso, Walking With the Wind: A
Memoir of the Movement, 344 (1998). Mr. Lewis reported that: The images
[of the ABC footage] were stunning -- scene after scene of policemen on
foot and on horseback beating defenseless American citizens. . . . This
was a faceoff in the most vivid terms between a dignified, composed,
completely nonviolent multitude of silent protestors and the truly
malevolent force of a heavily armed, hateful battalion of troopers. The
sight of them rolling over us like human tanks was something that had
never been seen before. People just couldn't believe this was happening,
not in America. Id. at 344-345. According to Mr. Lewis, the national
broadcast of this footage was a turning point in the civil rights
movement. However, if the ABC camera person had been governed by a
clause like the Illegal Act Provision, [Ed: or by some vaguely defined
"indecency" or "harm to the children" standard] the footage never would
have been shown to the American public. Such a ban on content cannot be
sustained. A lengthy analysis of the remaining prongs of the preliminary
injunction standard is unnecessary. The ban on content obviously has
significant potential to cause irreparable harm to AOTV producers. The
"balance of harm" and "public interest" factors also weigh decidedly in
the plaintiffs' favor. The motion to enjoin the enforcement of the
Illegal Act Provision will be allowed.

(Although I accept as useful the Court's formulation of "irreparable
harm to the plaintiff", since we all sense what it really means, I want
to just clarify that the real "irreparable harm" that matters is to the
Truth; and when harm is done to the Truth, harm is done to America.)

Pursuing further Mediacom's reliance upon the irrelevant charge of
"indecency" for its case, Mediacom cites Gillett Communications v.
Becker, 807 F.Supp. 757 (N.D. Ga. 1992), an "indecency" case in which
obscenity was never an issue. Here is Mediacom's summary:

There, Becker, a candidate for Congress, bought time to show a campaign
program that included a segment depicting a surgical abortion and also
segments showing dismembered fetal body parts and photographs of aborted
fetuses. The program was set to air on a Sunday afternoon and under FCC
rules, the television station could not reject or edit the content even
though it deemed it indecent and unacceptable for broadcast to children.
Id. at 762. Despite the mandate of Congress, the district court granted
the injunction request of the television station allowing it to reject
the candidate's programming for the time of day purchased and allowing
it to shift the program to late night, where it would less likely be
seen by children. Id. at 765. The court found the videotape was patently
offensive according to contemporary community standards. Id. at 763.

Mediacom does not mention that the reason the Court took the case was
that the FCC had declined to rule, having found that the video was NOT
obscene. The Court observed that had the FCC ruled, that Court would not
even have had jurisdiction to review an FCC order, but the case would
have gone straight to the D.C. Appeals Court which later did rule in
favor of Becker's video.

...the FCC's Mass Media Bureau ("Bureau") found, in a letter released on
August 21, 1992, that the advertisement was not indecent. Letter Ruling,
7 F.C.C.R. 5599, 5560 (Aug. 21, 1992). It also concluded that "the broad
prospective relief that petitioners seek [was] inconsistent with the
'reasonable access' provision of the Act...." Id. Specifically, the
Bureau stated that "[s]uch channeling [relegating the ads to the
"broadcasting Siberia" of 2 a.m. to 6 a.m.] would violate ... Section
312(a)(7) of the Act," because "channeling material that is not indecent
... would deprive federal candidates of their rights to determine how
best to conduct their campaigns." (BECKER v. F.C.C. 95 F.3d 75, 320 U.S.
App. DC. 387)

When the issue came up again later, the FCC asked for public comment
"whether broadcasters have any right to channel material that, while not
indecent, may be otherwise harmful to children." Finally a nonbinding
letter proceeded from an FCC office stating that:

...until the Commission provides definitive guidance, ... it would not
be unreasonable for the licensee [the TV station] to . .. conclude that
Section 312(a)(7) does not require it to air, outside the "safe harbor"
[of the middle of the night], material that it reasonably and in good
faith believes is indecent.

Mediacom does not mention that four years later, the case was overturned
by the D.C. Appeals Court, ruling against the FCC for letting stations
put the ads in the middle of the night even after the FCC agreed they
were not indecent! Here is one of the FCC's rulings, from its website
(Http://jcomm.uoregon.edu/~tgleason/j385/Indecent_j385 .html#A1) but
from when, I'm not sure:

Broadcast of political advertisement containing the graphic depictions
of aborted fetuses are not indecent... [M]any viewers find the images of
aborted fetuses deeply disturbing and patently offensive, [but] that is
not the test for indecency....We remain of this view notwithstanding
that a district court in Georgia concluded that a videotape depicting
"the actual surgical procedure for abortion" was indecent. Gillett
Communications v. Becker, 807 F. Supp. 757, 763 (N.D. Ga. 1992), appeal
dismissed mem., 5 F.3d 1500 (11th Cir. 1993). In our view, however, the
district court erroneously applied the indecency standard in that
case.... Even if the material at issue in the Gastfreund [the attorney
for the TV station] ruling could be considered indecent under some
meaning of that term, the images cannot be divorced from the context of
a political campaign. ... The advertisement in Gastfreund that prompted
this inquiry was presented in the context of a political campaign and it
is beyond dispute that the issue of abortion is an important question in
American politics. Accordingly, the context in which the advertisement
at issue was presented provides further support for our conclusion that
it was not indecent. Gillett Communications of Atlanta, Inc. v. Becker,
807 F.Supp. 757 (N.D. Ga. 1992), vacated, mem., 5 F.3d 1500 (11th Cir.
1993) (Cite given for this quote: "In the Matter of Petition for
Declaratory Ruling Concerning Section 312(a)(7) of the Communications
 Act, 9 FCC Rcd 7638; 1994 FCC LEXIS 5867; 76 Rad. Reg. 2d (P & F) 1062
(1994)

I am not a Federal candidate, and "reasonable access" is not the U.S.
Code governing my case. But after allowing for those differences, BECKER
v. F.C.C. 95 F.3d 75, 320 U.S. App. DC. 387 gives many eloquent reasons
why our photos are valuable in expressing the political views Becker and
I espouse, and why pushing them to the "broadcasting Siberia" of the
middle of the night is not acceptable. Some Becker principles, applied
to this case, are: (1) A law creating a benefit for all is not obeyed if
some are held to only partial access to the benefit. (2) Photos of slain
babies, in the context of a political position, are not "indecent". (3)
Whatever evidence there may be that the photos are "harmful to children"
is not strong enough to dispel the suspicion that it might be the
accompanying message, rather than the images themselves, that Mediacom
finds "too shocking for tender minds". (4) 2 a.m. to 6 a.m. is a
"broadcasting Siberia" with few viewers compared with Prime Time. (5)
Pushing a program otherwise eligible for Prime Time, to the middle of
the night, for no better excuse than to spare daytime viewers from
exposure to video that is not indecent, does not comply with the
combination of law, circumstance, and local policy that created the
eligibility for prime time. (6) Calling attention to the perceived
horrors of abortion is a legitimate political objective of photos
showing what abortion does to babies. (7) "Shocking and graphic visual
treatment" is likewise associated with euthanasia, rape, capital
punishment, gun control, smoking, and animal rights. (8) Mediacom is not
authorized by existing law to represent "the public interest" in
censoring other than for obscenity and nudity. (9) Congress has "deep
hostility towards censorship" whether it is practiced by a public agency
or privately owned media.

... we believe it is unreasonable and not in compliance with the statute
for a licensee to adopt a rigid policy of refusing to sell or give
prime-time programming to legally qualified candidates....Such a refusal
would deny the candidates access to the time periods with the greatest
audience potential and would be inconsistent with the Congressional
intent to give "... candidates for public office greater access to the
media so that they may better explain their stand on the issues, and
thereby more fully and completely inform the voters." The problem with
this statement is that it is not possible, on the one hand, to channel a
political advertisement to a time when there is little risk "that large
numbers of children may be in the audience," id., and, on the other, to
assure the candidate of "as broad an audience potential as is consistent
with [his] right of reasonable access."

...While the Declaratory Ruling emphasizes that broadcasters may not
channel [relegate to the middle of the night] an advertisement "out of
disagreement with the candidate's political position," and that "[t]he
licensee's discretion should relate to the nature of the graphic imagery
in question and not to any political position the candidate espouses," 9
F.C.C.R. at 7647-48, the Commission now allows licensees to channel
images based entirely on a subjective judgment that a particular
advertisement might prove harmful to children. All that it asks is that
that judgment be "reasonable" and made in good faith.

These are slippery standards....Moreover, the acceptance of a subjective
standard renders it impossible to determine whether it was the
advertisement's message rather than its images that the licensee found
too shocking for tender minds....

In many instances, of course, it will be impossible to separate the
message from the image, when the point of the political advertisement is
to call attention to the perceived horrors of a particular issue.
Indeed, this was the apparent purpose of many of the candidates who ran
abortion advertisements similar to Mr. Becker's....

And the political uses of television for shock effect is not limited to
abortion. See id. at 95 ("Other subjects that could easily lead to
shocking and graphic visual treatment include the death penalty, gun
control, rape, euthanasia and animal rights.")

...the Commission offers no evidence that Congress intended to
subordinate a candidate's right of reasonable access to a licensee's
assessment of the public interest.

...The Commission also insists that the ruling does not allow licensees
to dictate what issues a candidate may address in its advertisement or
to "exercise their discretion in a manner that has the practical effect
of censorship" by, for example, airing the advertisement during a period
of "minimal viewership," such as 2:00 a.m. to 6:00 a.m. Brief for
Respondent at 27. The FCC further argues that, in any event, the
competing public interest in protecting the welfare of children
outweighs "the minimal intrusion on a candidate's unfettered ability to
present his message at the particular time preferred by the candidate."
Id. at 30....

[t]he term censorship, ... as commonly understood, connotes any
 examination of thought or expression in order to prevent publication of
"objectionable" material. We find no clear expression of legislative
intent, nor any other convincing reason to indicate Congress meant to
give "censorship" a narrower meaning in 315....

Farmers Educ. & Coop. Union of Am. v. WDAY, Inc., 360 U.S. 525, 527
(1959). ... held that section 315(a) prohibited a broadcaster from
removing defamatory statements from the advertisements of a legally
qualified candidate. From the Court's discussion, we may discern
[that]... the section reflects Congress's "deep hostility to censorship
either by the Commission or by a licensee." Id. at 528....

Not only does the power to channel confer on a licensee the power to
discriminate between candidates, it can force one of them to back away
from what he considers to be the most effective way of presenting his
position on a controversial issue lest he be deprived of the audience he
is most anxious to reach. This self-censorship must surely frustrate the
"full and unrestricted discussion of political issues" envisioned by
Congress.

Becker acknowledges "there was evidence in the record 'indicating that
the graphic political advertisements at issue can be psychologically
damaging to children,'" Defendant has offered no such evidence in the
record of this case, in support of its theory that my photos will harm
children. While we do not know what evidence there was in Becker, it
must not have been terribly compelling, in light of the Court's
skepticism about the TV station's "subjective judgment that a particular
advertisement might prove harmful to children", and the Court's cynicism
that it could have been "the advertisement's message rather than its
images that the licensee found too shocking for tender minds."

In the absence of evidence of what it takes to harm children,
"prevailing community standards", as indicated by what parents routinely
choose to expose their children to, may be helpful.

My wife is currently working on a "Child Evangelism Fellowship" lesson
she will present next week to children in a public school building. The
lesson is about Jael, the heroine whose husband once advised the
ruthless Captain (General) Sisera, but when Sisera was defeated in
battle he fled to Jael's tent where she coaxed him to sleep and then
drove a tent stake through his head. The next chapter of the Bible,
Judges 5, is a song about her heroic deed and that of fellow heroine
Deborah.

But we need no evidence this lesson is really taught to children with no
expectation of harm. It is common knowledge that the most familiar
children's Bible stories exude the most "graphic" violence. Jonah
swallowed by the whale, David slaying Goliath, Daniel thrown to the
lions who subsequently ate Daniel's accusers, Shadrach, Meschek, and
Abednego thrown into the Fiery Furnace whose flames swallowed up the
soldiers who threw them in, Noah and the Flood! But of all the "graphic"
stories of violence told children today, what exceeds Jesus on the
Cross? Yet who suggests the "story" harms children? Does not our culture
accept, rather, the healing benefits of this story for children?

Appendix A is an article by Cheryl Sullinger of Operation Rescue West,
whose office sent out the huge semis with enormous photos showing what
abortion does to babies. The appendix's only relevance is to show that
the political and religious messages distributed with these photos are
well developed, and they have a national following.

Graphic Photos. By the way, the word "photograph" has the root of
"graphic" in it. Any "photograph" is, by definition, "graphic". It is
redundant to call a photograph "graphic". The word normally is reserved
for words which paint for the mind a vivid image. In fact, this is the
only sense understood by Webster's New Universal unabridged Dictionary,
1979. The definition of "graphic" shared by Mediacom and news reporters
has become more familiar since photos showing what abortion does to
babies have been circulated. They use it as an expression of disgust and
contempt. Not that the word itself ever before connoted disgust or
contempt, but when news reporters say the word their inflections and
facial expressions express disgust and contempt, which helps viewers
understand that is the meaning of the word.

Any parent seriously concerned about viewing that harms children, will
sell the TV and invest in some good books. There is an inverse
relationship between hours of television watched and intellectual
development, which would have to be discounted for in any attempt to
research the alleged "harm to children" of photos showing the reality of
abortion. Mediacom's customized psychological research would also need
to prove photos of slain babies harm children, but images of violent
crimes against adults, which children watch all the REST of the time on
Mediacom's family-hour programming, do not. (Otherwise Denver's
"Hypocrisy Standard", explained in my November 19 Trial Brief, would ask
why Mediacom does not move the rest of its violence to the middle of the
night.) The psychologists would also want to explain why my photos,
calling for repentance from cruelty, are harder on children than MTV's
lyrics justifying and advocating sexual cruelty and violence, and
home-wrecking behavior.

I have witnessed many children seeing such photos as mine for the first
time, and I have never seen a child upset by them (as indicated by
crying, anger, or other emotional upheaval); I have only seen parents
upset at having to justify to their child something which suddenly
became much harder to justify. Even the handful of parents who called me
to complain about the photos in my campaign literature, who said their
children shouldn't have to see them, did not describe their own child's
questions in a way that suggested trauma, but rather curiosity.

The only legitimate issue is not whether children are harmed, for which
there is not a shred of evidence, but that parent's authority to control
their children's viewing is compromised when their children see things
the parents don't want them to see. There is definitely evidence that
some parents really don't want their children to see our pictures. But
though this parental reaction is occasionally intense, as I have seen
where our large signs are held up at intersections, I have seen a much
greater public outcry from parents over MTV. By contrast, I have seen
many parents who appreciate the signs. After all, most of the people
holding up the signs, are parents who love and nurture their children.
How many parents like that are portrayed on MTV?!

Potentially obscene. Mediacom offers still another theory how my photos
might correctly be categorized as "obscene". They may not be "obscene"
now, but something might happen in the future that could make them
"obscene". It will be interesting to see what scenario Mediacom might
offer in the future to make this theory come to life. One hasn't been
offered yet.

Mediacom further determined that Plaintiffs application of the Cable
Act, the ordinance and the franchise agreement would force it to program
its cable system with content it found unacceptable, potentially
harmful, objectionable and potentially obscene.

And yet Mediacom cites a case vaguely in support of censoring
"potentially obscene" film.

Demarest v. AthoL/Orange Community Television. Inc., 188 F.Supp.2d 82,
99 (D. Mass. 2002) (wherein the district court denied preliminary
injunctive relief barring a public access channel administrative body
from implementing a policy regulating potentially offensive public
access programming and requiring prior identification of submissions
that have "slang or vulgar language, sexual activities, extreme acts or
depictions of violence or depictions of a graphic nature").

Mediacom does not mention that the Court found even these rules were
PROBABLY unconstitutional, and the only reason the Court did not grant
relief on this issue, one of the tangental issues of the case, was
because the issue was not "ripe", to use Mediacom's word. The plaintiffs
hadn't been censored for anything related to this issue; they just saw
this language in the contract they had to sign and worried how it might
in the future be applied.

...the plaintiffs have not shown, for purposes of the preliminary
injunction, that the Potentially Offensive Provision -- on its face and
without the context of an actual controversy -- is not narrowly tailored
to promote a compelling interest." "the Supreme Court has cautioned that
"[i]nvalidating any rule on the basis of its hypothetical application to
situations not before the Court is 'strong medicine' to be applied
`sparingly and only as a last resort.'" ". If AOTV, as plaintiffs fear,
applies the Potentially Offensive Provision in an unconstitutional way,
plaintiffs may seek injunctive relief at that time "in a concrete
setting." McGuire, 260 F.3d at 47. As noted, such challenges will be
reviewed under strict scrutiny. A program featuring political criticism,
such as the Think Tank 2000 broadcasts discussed here, seems unlikely to
qualify as "potentially offensive." In the meantime, plaintiffs retain
the ability to prove their case on the merits, without the benefit of an
injunction.

In Demarest, the Plaintiff accused one of the bureaucrats on the public
access channel regulating body of using her position on "too many local
boards" to get "special treatment" in the evasion of petty local zoning
laws. The Court declined any duty to determine the accuracy of the
charges, ("The accuracy of the criticisms is irrelevant to the
issues..."), but simply classified them as "political criticism".
Similarly, it is probably not the duty of this court to determine
whether the religious or political messages of my photos are accurate,
but Becker establishes such photos as mine as "political material" and
"political messages". Demarest further establishes that "political
criticism...seems unlikely to qualify as 'potentially offensive'."

Intimidate. Mediacom adds this word to its complaint against me six
times in its November 20 Trial Brief.

His avowed purpose for these messages is to stop doctors from performing
abortions and to discourage persons through shame, intimidation, or
other means from accessing Planned Parenthood clinics.

"Intimidate" is a word easily used loosely. It has a legal meaning which
is a cause of court action; or it can be used in a general sense of
annoyances against which, some say, "there oughta be a law", but in
America, there isn't yet. For example, it is in a general sense that
Mediacom's counsel, Mr. Guidicessi, sought to intimidate me at trial;
but in a legal sense, he is not prosecutable for it, whether or not he
ought to be.

Mediacom alleges it is my "avowed purpose" to intimidate, meaning I have
publicly acknowledged I deliberately intimidate people. I am skeptical.
Mediacom sets forth no quotes to that effect. I do not recall any desire
to intimidate anybody, other than to tell the truth, and unfortunately
some people choose to deny the truth, and thus they say they feel
"intimidated" by a more persuasive presentation of the truth. But it is
never my intention that people react in that way to the truth! It is my
intention that the Truth be embraced! Guidicessi says my "avowed
purpose" is to shame women seeking abortion. But since he sought to
shame me in trial November 20, he surely cannot think it a character
flaw to attempt to shame someone. He must agree with me that it can be a
noble mission, depending on whether you rightly discern which actions
ought to occasion shame.

Inferential advocacy of violence. Mediacom acknowledges I have not "directly... advocated and supported violence" so it takes the next best
shot: I have INFERENTIALLY advocated violence.

Plaintiff, if not directly, has inferentially advocated and supported
violence against persons who perform abortions and intimidation of those
who utilize services of clinics such as Planned Parenthood of Greater
Iowa.

The problem with this theory is that "advocate" means to openly, "on the
record", "plead" in favor of a person or position, typically in court.
To "infer" means to support a person or position but to evade doing so
openly or on the record. "Inferential advocacy" is a contradiction in
terms. Were I even guilty of deliberately inferring support for
violence, as Mediacom infers it alleges, which I am not, I would still
be short of the ground of censorship considered in Denver, of openly
"advocating" illegal acts, and of course Denver even shot down open
advocacy of illegal acts ("material soliciting or promoting unlawful
conduct") as a ground of censorship.

There seems to be a vague inference that the facts alleged in the record
support a charge of "intimidation" in some sense that creates liability
for Mediacom. The strongest evidence that publicizing photos of
abortionists' customers creates no liability is the fact that Neal
Horsley, who has publicized them on his website (www.abortioncams.com)
for over a year now, has not been sued. (News reporters erroneously
reported that the ACLA jury sued him for millions, for his "Nuremburg
Files" website, but the fact was the Court never made him a defendant.)

A Coherent Political & Religious Position. Foundation for Mediacom's
theory that my photos would create liability seem sketchy enough to
justify the conclusion that Mediacom's charges of "intimidation" and
"inferential advocacy" (as well as "objectionable", "unacceptable",
etc., are simply irrelevant. Yet even though they are irrelevant, once
in the record, it may be relevant for me to respond briefly to them,
since Defendant's irrelevant arguments consist of personal attacks and
character assassination, and since perception of my character may affect
 the perceived trustworthiness of some of my testimony. For example, it
will be harder to perceive the political and religious character of the
message of my photos, if the record portrays my position as containing
no logic, but only emotion, mostly hate.

Ever since Operation Rescue plopped the first prolifer in front of an
abortionist's door, our legal justification has been the Necessity
Defense. (In Iowa, it is called "Compulsion", and is found in Iowa Code
704.10.) In a phrase, the law says breaking things is justified in order
to save lives, as I characterized it in my TV commercial idea over which
I was questioned at trial. That's not my position: that's the position
of The Law, and not just any law, but a law so fundamental to any Rule
of Law that to repeal it would reduce law enforcement to the most
tyrannical morass of chaotic, absurd legalism. No matter how exalted the
legal authority, no matter what age or culture, the forces of mindless
legalism "hold their peace" when asked, as the Pharisees were asked by
Jesus, "Is it lawful to do good..., or to do evil? to save life, or to
kill?" Mark 3:4

Iowa Code 704.10, if literally obeyed, would literally justify burning
down Planned Parenthood in order to save the lives it snuffs out. Thus
Iowa law is far more fanatical about abortion than I am. I do not
attempt to persuade anybody to burn down any buildings! All I urge
people to do is support the clarification of 704.10 to provide what case
law already provides: that the comparison of the "harm prevented"
(abortion) with the "harm perpetrated" (trespassing) shall be conducted
as a fact issue, by the fact finders. I even propose amending the law so
it does NOT justify destruction of physical property, when the harm
prevented is abortion! (Even though it still MUST justify destruction of
physical property, in order to save many adults from serious injury.)

My legal arguments are not flighty or off the wall. They are
exhaustively presented on my website, www.Saltshaker.US, (click on "Help
me stop the Violence"), and enjoy the endorsements of attorney Chuck
Hurley, former head of the Iowa House Judiciary Committee, and Joe
Scheidler of Chicago, who manages a whole office of attorneys. My
article thoroughly discusses how this bill would proceed through the
Iowa Legislature, and then through the U.S. District Court, and the
Eighth District Court of Appeals. It presents a scenario that includes
all manner of legal arguments and counter arguments. I believe the plan
is court-proof, if carried out right.

Although violence is the last thing I advocate right now, it is vital to
the success of my legislative vision that people come to correctly
understand the Necessity Defense, and stop categorically accusing those
who have used violence of breaking the law, when their actions are
literally justified by the Necessity Defense which, my arguments
explain, has been misapplied in courts. Please understand this
perspective as you read my many articles which explore the issue from
many angles. I am less controversial than the law. It just doesn't have
a TV show like I do.

But it is a political solution I urge. I do believe many thousands of
lives have been saved by violence, but I believe many thousands more
have been saved by political action; and especially now, with my plan
for ending all abortion, I believe anyone concerned enough about saving
lives to forfeit his own freedom for the rest of his life, would save
many more lives by putting that much commitment into my legislative
initiative.

The reason some portray me as "advocating violence" is because I will
not simplistically "renounce violence" as "mainstream" prolife leaders
think necessary. I will not renounce it because the law does not
simplistically renounce it, and because to do so would be hypocritical,
while continuing to appreciate police and armies, or absurd, if such
pacifism is consistent enough to renounce them, too. Mediacom states,

He was a signatory to the petition defending Michael Griffin, who was
convicted of killing Dr. David Gunn. In that petition, Plaintiff and his
co-signers asserted that Griffin's actions were justifiable.

A lawyer should be able to distinguish between a contract, and a
salesman's summary of it. What you have just read is the salesman's
summary. The contract I signed did not flatly defend Michael Griffin,
but defended a logical syllogism which I could not refute, much as I
longed to. Although I was afraid of signing the statement and facing the
public, I was more afraid of facing God after not signing a statement
which I could not refute, which is consonant with Florida law,
(Florida's Necessity Defense specifically justifies "lethal force" to
save life, unlike Iowa's version), and which seemed important to God.
Here is the syllogism:

We, the undersigned, declare the justice of taking all godly action
necessary to defend innocent human life, including the use of force. We
proclaim that whatever force is legitimate to defend the life of a born
child is legitimate to defend the life of an unborn child. We assert
that if Michael Griffin did in fact kill David Gunn, his use of lethal
force was justifiable, provided it was carried out for the purpose of
defending the lives of unborn children."

I could not forget, as I pondered the elements of this syllogism, that,
as I explain at www.Saltshaker.US/CompulsionAmendment.htm, the 50
million tortured to death...

...are human beings, according to every single American legal authority
which has taken a position on it. Every single one has said human life
begins at conception. Many have added that therefore, killing unborn
babies is murder. I didn't say religious authorities: I said American
legal authorities. (See footnote 1) Not even Roe denied that the unborn
are human, or that killing them is murder. They literally said they
weren't competent to decide "when life begins". (See footnote 2)
(Footnote 2:) ....No legal authority has yet challenged this statement
of legal fact, (that life begins at conception), and therefore it merits
the status of UNCONTESTED legal fact, as it were a STIPULATION of
America's entire judicial system. Roe v. Wade never challenged this
fact, though pressed to do so. Its ground for avoiding this issue was
its INCOMPETENCE (through want of wisdom, it explained) to decide it.
The court said: "We need not resolve the difficult question of when life
begins. When those trained in the respective disciplines of medicine,
philosophy, and theology are unable to arrive at any consensus, THE
JUDICIARY, at this point in the development of man's knowledge, IS NOT
IN A POSITION TO SPECULATE AS TO THE ANSWER." (410 U.S. 113, 159)

I am still struggling to understand the relevance of Mediacom's line of
attack. Mediacom seems to be making the case that I don't respect the
law, but even Mediacom hesitates to accuse me of wanting to violate the
law. ("...the question is not whether Plaintiffs conduct is capable of
supporting the conviction for violation of the Freedom of Access to
Clinic Entrances Act or is capable of being enjoined as hate speech...")
Whereas it is very clear that Mediacom does not merely disrespect the
law, but has already broken it.

Threat speech. "Threat" appears in the brief 19 times. For example, my
photos

...would be unprotected if it constituted threat speech, hate speech,
fighting words or was obscene.... His prior conduct, including his Army
of God publications, his joinder in the petition defending Michael
Griffin, who was convicted of killing Dr. David Gunn, and his other
proclamations and declarations, like Ms. Dinwiddie's, each in its
 singular instance may be protected under the First Amendment, "but they
may also be relevant to show that other statements could reasonably be
understood as threats of physical harm." Id at 918 n. 2.

(Hate speech? Will we see alleged law that robs "hate speech" of
constitutional protection? "Fighting words"? Will we see a proposed
scenario in which my photography would put anyone at risk of IMMINENT
violence (as required by Watts v. United States, 394 U.S. 705 (1969))
other than myself or the cameraman?)

But do Courts have specific criteria of what constitutes a prosecutable
or actionable "threat"? Yes, and Mediacom cites five specific tests,
from U S v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996). But nothing in the
record indicates my photos are "threats" by even ONE of these five
criteria.

(1) "...the reaction of those who heard the alleged threat". What
reaction of abortionists' customers has been cited ANYWHERE to indicate
any of them felt threatened? Have any of them purchased bullet proof
vests, as the abortionist did in the Dinwiddie case?

(2) "...whether the threat was conditional". What statement of mine is
even in existence for the purpose of analyzing whether it is
"conditional"? Dinwiddie made a number of verbal statements, including
quoting Genesis 9:6, to a specific abortionist. I have made NO statement
to any specific abortionist's customer about ANYTHING, EVER. Nor have I
ever suggested, even in general, that any abortionist's customer should
be terrified of any man. My emphasis has been on just pleading with them
not to bring terror upon their very own babies.

(3) "...whether the person who made the alleged threat communicated it
directly to the object of the threat". Who has even alleged I, or any of
my cameramen, have "communicated directly" with any abortionist's
customer, much less communicated any threat to them, as Dinwiddie
communicated with the abortionist?

(4) "...whether the speaker had a history of making threats against the
person purportedly threatened". What history has been alleged of even
communications from me, much less threats from me, to abortionist's
customers, to compare with Dinwiddie's years-long relationship with the
abortionist?

(5) "...whether the recipient had a reason to believe that the speaker
had a propensity to engage in violence." What abortionist's customer has
ever expressed any speculation that I have "a propensity to engage in
violence", much less has offered reasons for such a speculation, much
less has ever suggested I might engage in violence against THEM? Not
only does each and every one of these elements quoted from Dinwiddie
lack any support in the record, but they lack any support in the known
universe.

But the strongest indication that filming abortionist's customers
creates no liability under FACE is that Neal Horsley, who has done it
for over a year, has not been sued or prosecuted.

An example of cheap out-of-context quotes to make Mediacom's case that I
am a terror to civilization is the following which makes it sound like
the entire U.S. Justice Department is terrified of me, presumably
because of its expectation that I will bomb their headquarters or
something:

On that web site, Plaintiff wrote about "The Anti-Roe Brief that scared
the Justice Department... written by Regina Dinwiddie and Uncle Ed. to
appeal the lower court FACE suit against her for Biblical warnings,
which the court construed as personal threats."

Here is the statement, with the phrases omitted by Mediacom:

The Anti-Roe Brief that Scared the Justice Department - as indicated by
them asking the Supreme Court for 2 (count 'em) TWO 60-day extensions of
time to respond! Written by Regina Dinwiddie and Uncle Ed. to appeal the
lower court FACE suit against her for Biblical warnings, which the court
construed as personal threats. When Regina called the Supreme Court
Clerk of Court office, to inquire about the highly unusual 60-day
delays, the clerk seemed familiar with her case, which is in itself
highly unusual. The delays occurred during the period the Court was
considering another prolife case, which it eventually heard. The other
case was far narrower in its scope, involving only picketting, while our
case went to the heart of the mistakes of Roe v. Wade. Regina concludes
from all this that the Justice Department was afraid of letting her case
before the Court, so they delayed the Court's ability to accept the case
until they had already accepted the other case; and no one expects the
Court to hear more than one prolife case in a single term.

U.S. Marshals. An example of unsubstantiated character assassination:

Mediacom is aware of the various activities of the Plaintiff, as
evidenced throughout his website, his prior public statements and his
conduct which previously led to the posting of U.S. Marshals at Planned
Parenthood of Greater Iowa clinics in 1994.

Among all the charges leveled against me in 1994, which I refute on my
website, from which Mediacom's attorney presumably got his information,
I never heard the charge that any "conduct" of mine was cited to justify
the marshals. It was my writing, they said, which was why on August 15 I
offered free space in my Prayer & Action News for any abortionist to
hire the best writer they cared to hire, which would be a lot cheaper
than those Marshals, to refute my "dangerous distortions" in my own
pages! They weren't interested. The truth, of course, was that Janet
Reno had decided to post U.S. Marshals on July 30 outside abortion
offices all around America 24 hours a day for political purposes, and I
was the closest thing to a scapegoat in Des Moines. (FACE had been
passed May 26.)

Deterrence. Mediacom accuses,

The context of Plaintiffs videotape showing persons entering and leaving
Planned Parenthood when coupled with Plaintiffs conduct, speech, and
avowed purpose to deter persons from obtaining services at Planned
Parenthood, show how Plaintiffs speech violates the Freedom of Access to
Clinic Entrances Act, 18 U.S.C. 248.

My "avowed [stated] purpose" is "to deter"? Well, perhaps by persuasion.
Is there a law against persuasion? Have I ever stated I hope to "deter"
abortion by OTHER than persuasion, or by changing the law? "FACE" is the
statute with regard to which the Dinwiddie Court developed the five
criteria for calling something a "threat", each of which clears me of
the charge.

Libel. Mediacom's November 20 Trial Brief levels many charges, repeating
them over and over, creating an EXPECTATION of a coming argument for
relevance which never comes. For example, Mediacom complains of my
"portrayal of persons...in false and intimidating ways" without alleging
which of my statements is "false". At trial, Mr. Giudicessi had
difficulty understanding that a disclaimer, in a voiceover of several
people shown, applied to all the people shown equally, rather than
imagining that the phrases in the voiceover which happened to coincide
with a particular photo applied specifically to the person in that
photo. But the text of the disclaimer should be adequate to dissuade a
reasonable person of the insinuations Giudicessi alleged. Further
clarification came a little later in the tape where I tried to list "Ten
Reasons why entering Planned Parenthood Might Not Be Wicked". I couldn't
actually come up with ten, but I listed a few. Here is Jonathan
O'Toole's disclaimer that survived the editors of three separate
newscasts on the evidence tape I submitted:

TV 8, 6 pm, 8/21/02: "We're not going to be yelling at anyone. We're not
going to be harassing anyone or blocking anyone's right of way. We're
going to be very careful to simply capture the truth about what happens
in public view at abortion clinics."

TV 13, Noon, 8/22/02: "...we are capturing real images of people. We
don't know why they are coming here exactly. We know they are
patronizing Planned Parenthood of Greater Iowa, which is a place where
unborn babies are terminated, are slaughtered, are torn apart out of
their mothers' wombs on a regular basis."

CNN International, 11:30 am, 8/29/02: "I don't know what these people
are going into the clinic to do, specifically, but I know this is a
place where unborn babies are being slaughtered on a regular basis."

A charge follows of "libel" and "defamation", unsupported by any
evidence or alleged quote of anything I have said which fits the label
(The closest Mediacom comes is to allege I have labeled "identifiable
persons as adulterers or abortionists", but Mediacom offers no quotes to
support such a characterization, and I cannot imagine how anything I
have said could be so construed):

Libelous speech and content that constituted an invasion of privacy.
Coplin makes clear that public access programming can be edited or
rejected if it in fact constitutes an invasion of privacy or is
defamatory. ....In light of what was disclosed, and what was not
disclosed, Mediacom reasonably concluded that Plaintiffs proposed
portrayal of individuals entering and leaving Planned Parenthood could
be actionable content for invasion of privacy and for libel. ....Coupled
with his avowed purpose and his prior actions, Mediacom reasonably
concluded that Plaintiffs attempts to cablecast his speech were part of
an overall attempt to intimidate and harm persons through false speech
or speech which cast them in a false light or disclosed private
embarrassing facts. ...Mediacom further determined that the segment was
false speech unprotected under the Constitution because it could be
libelous and could constitute a false light invasion of privacy, for,
among other things, labeling identifiable persons as adulterers or
abortionists.

The most astonishing revelation here is Mediacom's admission that the
"private facts" exposed by my cameras are "Embarrassing"! Under what
theory could any "facts" I expose "embarrass" anyone? Certainly not
under the theory that abortion is a perfectly legitimate "choice" with
clear support of religion and morality! Anyone truly embracing such a
theory would be proud to be on my film! Only under the theory that those
exposed agree with me that the abortions, which they either seek, or at
least implicitly support by commerce with an abortionist, ought to shame
anyone who associaties with them, could my exposure of their commerce
"embarrass" anyone.

Without some admission that my exposure "embarrasses" someone, there can
be no charge of "DE-famation" or "libel". But if some potential litigant
concedes my exposure has shamed them, must they not also concede the
legitimacy of my religious and political message? And if they concede
that my perspective is religious and political, and furthermore
legitimate, does not that even further weaken their case for suing me
for reporting matters of legitimate public interest that I observe in a
public place?

Jay Coplin, Coplin v. Fairfield Public Access Television, 111 F.3d 1395
(8th Cir. 1997), embarrassed people on a different level: not for
actions about which there is moral or religious controversy, but for
actions for which only modesty demands privacy. Since the sexual
activity he reported at specific addresses was not identified as being
marital or extramarital, there is no basis for questioning its morality.
It is like reporting that someone is going to the bathroom. There is
embarrassment but no shame. My photography, however, is unrelated to
concerns of modesty. People routinely speak of abortions they have had,
or will have, with unconcern for the modesty they would have in
describing the times they have gone to the bathroom, or in describing
their sexual experiences.

Army of God. Mediacom trumpets: "He has been a proponent of the Army of
God."

I have done my best, honest, to educate news reporters about songs like
"Onward Christian Soldiers" and "We're In the Lord's Army" and "Am I a
Soldier of the Cross", which illustrate the fact, along with Scriptures
like Ephesians 6:12-17 and Hebrews 4:12, that "Army of God" has
historically referred simply to the Body of Christ, or the True Church.
When prolifers say they are members of the Army of God, they don't mean
they are in an army of men distinct from established churches. They mean
"We, too, are in the same Army of the Lord to which you owe allegiance."
As ignorant news reporters have created a new definition of the phrase,
some bemused prolifers let the error go without protest, partly because
they assume protest will be ignored, and partly because they figure the
scarier reporters make them look, the more doctors might be frightened
out of going into the abortion business.

This actually serves as an example of "intimidation" for which the
prolifers at its center cannot be blamed. The blame must be laid at the
feet of ignorant, paranoid, abortion-friendly reporters and other
community leaders. If some future paranoid abortion customer imagines me
a threat to them -- I've not heard of anyone that paranoid so far --
because they have not read my own statements and instead believe what
paranoid reporters tell them based on out-of-context inaccurate quotes,
that is not the same as "reasonable" belief that I pose a threat.
"Reasonable" people understand that reporters distort facts, due both to
human error and human prejudice, (especially when accusations of sin are
involved), so that the only real source of truth about anyone's positi
ons is "from the horse's mouth". American citizens understand the value
of hearing both sides of a story before being certain in judgment. They
intuitively understand the merit of Proverbs 18:13, "He that answereth a
matter before he heareth it, it is folly and shame unto him." I have a
website and a TV show where my true views are expressed conveniently and
anonymously. The fact that abortionists cry crocodile tears over their
fear of prolifers should not be grounds for removing Constitutional
rights, without a reasonable basis for their fear.

Mediacom's purpose for accusing me with misunderstood labels is to
portray me as too radical to have any political or religious view worth
protecting from censorship. And yet Mediacom at trial actually tried to
vilify me for not being radical enough -- for NOT having giant slain
baby photos in the window of my music store! Most ironic, the project is
Mr. Guidicessi's idea! I agree it is a good one. One reason I haven't
acted on it yet is that it takes a bit of physical preparation just how
and where to display it, and I have been swamped with these briefs.
Another challenge is to think of a few words to go with it that will
give it the right spiritual perspective. I can give it in 1,000 words. I
haven't come up with how to do it in 10.

As I explained in my November 19 Trial Brief, another factor I weigh is
relevance. I show such a photo with a discussion of abortion where I
have time to explain the correct meaning of it. I wouldn't show it in
the middle of a show about repairing a saxophone. I have asked friends
to pray for God's will whether I should put one in my window. If no
answer comes, I will do my best to decide on my own wisdom. Generally
speaking, however, I am more interested in accuracy of a message, than
quantity of it.

Loss of advertising. Mediacom understandably doesn't want me "infringing
on Mediacom's speech, press and property rights and its relationships
with subscribers, advertisers and the public." Here is the meat of
Mediacom's concern. But is even this concern legitimate, not to mention
relevant to its duty to obey federal law? What advertiser will pull
advertising because of some political statement which no one blames on
Mediacom, made on one of Mediacom's 100 or so channels, and overwhelmed
by opposing rhetoric on many of the others? If anything, wouldn't most
advertisers be made more nervous by censorship to the point of
controversy, than by allowing the same free exchange of political ideas
all other broadcasters allow?

Coplin's Content Regulation. Mediacom thinks:

The Court of Appeals did not overturn the content regulation of the
Coplin public access board -- therefore, Coplin stands for the
proposition that in this circuit a cable access administrative body
created by government constitutionally can bar unprotected speech from
an access channel. Id. The Court in Coplin further discussed how under
limited circumstances a governmental entity could regulate public
disclosure of facts about private individuals. Id. at 1404. Further, the
Court indicated that a governmental agency supervising a cable access
channel could regulate defamatory speech of a private individual
"because of its constitutionally prescribable content." Id. at 1406.
When the Court remanded the Coplin case, it did so for the purpose of
factfinding as to whether the proposed programming constituted an
invasion of privacy or libel. Id. at 1408.

Mediacom presumably means to say the Court of Appeals did not overturn
the authority of the public access board to regulate some content: of
course Coplin did virtually overturn the board's regulation of Jay
Coplin's content. The overturn was not absolute, but the four part test
it imposed seems an impossible hurdle for the lower Court to overcome.
More to the point it is surely an impossible hurdle for anyone to
overcome who wishes to sue me for my photography.

Furthermore, Demerest articulates the absurdity of requiring news
reporters to get signed release forms, (at trial, Mediacom asked me if I
had written permission, as if Mediacom found significance in the
question for some unarticulated reason), with arguments which place my
photography of abortionists' customers well within what passes for that
Freedom of the Press upon which American Freedom in general depends:

AOTV suggested that the "guidelines [requiring public access producers
to get signed release forms for everyone who appears on their shows]
 [were] designed to protect community residents." (Docket 8 at 9). It
argued that if the court allowed the plaintiffs' motion, it "would
effectively eliminate any protection these residents may have against
abuses of access resources. The Plaintiffs could continue to tape
individuals without obtaining proper releases and violate residents'
rights of privacy and publicity." Id. It is doubtful whether, consistent
with the First Amendment, AOTV may so entirely subordinate the
plaintiffs' right of expression to citizens' privacy rights. .... The
Release Form Provision effectively gives any person, even a public
figure, veto power over any AOTV broadcast no matter how newsworthy.
Even if the Release Form Provision might in some contexts serve a
reasonable purpose, it was not, as applied, "sufficiently tailored." It
put a suffocatingly impracticable burden upon electronic news gathering
by requiring a release form from every recorded person. Obtaining a
release form from every person who was recorded, for example, at a
picket line, a protest, a city street, or a town meeting is simply
infeasible. At base, plaintiffs had a constitutionally protected right
to record matters of public interest, see Smith v. City of Cumming, 212
F.3d 1332, 1333 (11th Cir. 2000), cert. denied 531U.S. 978 (2000);
Fordyce v. City of Seattle, 55 F.3d 436, 439(9th Cir. 1995). This right
was not unlimited, of course. Plaintiffs, for example, could not have
invaded private homes, no matter how newsworthy the subject. Cf. Wilson
v. Lane, 526 U.S.603, 612 (1999) (finding that First Amendment rights of
press did not justify allowing reporters to ride along with police on
warrant executions in private homes). Similarly, the plaintiffs did not
have an unlimited right to publicize private facts. See Virgil v. Time,
Inc., 527 F.2d 1122, 1128 (9th Cir. 1975) ("[w]econclude that unless it
be privileged as newsworthy . . . the publicizing of private facts is
not protected by the First Amendment."). See also Gilbert v. Medical
Economics Co., 665F.2d 305, 308 (10th Cir. 1981) (same); Veilleux v.
National Broadcasting Co., 8 F. Supp.2d 23, 40 n.8 (D. Me. 1998)(same).
However, as applied to these plaintiffs, the Release Form provision made
no distinction between the newsworthy and the mundane, or between
matters of public interest and purely private.

It should be noted that the plaintiffs make a very plausible argument
that the Release Form Provision constitutes a prior restraint. As the
above analysis makes clear, however, the court need not decide that
issue for purposes of issuing the preliminary injunction. ...Rather than
being tailored to protect legitimate interests in privacy, the Release
Form Provision made Athol's news makers news editors. By refusing to
sign a release form, Athol's newsmakers could ensure that their images
did not appear on AOTV.

...As noted above, "the loss of First Amendment freedoms, for even
minimum periods of time, unquestionably constitutes irreparable injury."
Elrod, 427 U.S.at 373.... The balance of harms weighs in the plaintiffs'
favor as well. As noted above, AOTV may not so crudely subordinate the
First Amendment rights of the plaintiffs to some unlimited notions of
privacy. Its mission is to provide the community with a channel open to
diverse programming. AOTV will not suffer the slightest injury by
issuance of the injunction.

Plaintiffs, on the other hand, face irreparable harm if the injunction
is not granted. The public interest prong of the analysis also supports
issuance of the injunction. "At the heart of the First Amendment is the
recognition of the fundamental importance of the free flow of ideas and
opinions on matters of public interest and concern." Hustler, 485 U.S.
at 50. Even if it were true, as Chiasson allegedly complained, that the
plaintiffs "do not get their facts straight," the "freedom to speak
one's mind is . . . a good unto itself [and] . . . essential to the
common quest for truth and the vitality of society as a whole."

Stalking?! "Plaintiffs videotape "stalking" ...constitute[s] content
unprotected by the Constitution." "Stalking" has been well defined in
many laws, and standing with a camera in a fixed location, filming
unidentified people walking in and out of another fixed location, does
not qualify!

The Scope of Mediacom's Targets. Mediacom has specifically named Public
Access channels as its targets for elimination, "(the 'P' in PEG)" but
47 U.S.C. 531, which it asks the Court to eliminate, also provide for
leased, government, and educational access channels. This includes the
broadcasting of City Council meetings, School Board meetings, and
educational programming designed to reach students at home and at remote
buildings within a school system. Mediacom states in its October 30
brief,

This case presents the correct setting for such a declaration against
the constitutionality of 47 U.S.C. 531 in its entirety and
specifically 47 U.S.C. 53 1(b) and (e) ....Mediacom respectfully urges
that this Court should...declare that the federal Cable Act and City of
Des Moines statutory and franchising scheme that requires Mediacom
to...disseminate content against its choice and without the right to
edit or reject it is unconstitutional.

Paragraphs (b) and (e) read:

(b) Authority to require designation for public, educational, or
governmental use. A franchising authority may in its request for
proposals require as part of a franchise, and may require as part of a
cable operator's proposal for a franchise renewal, subject to section
626 [47 USCS 546], that channel capacity be designated for public,
educational, or governmental use, and channel capacity or institutional
networks be designated for educational or governmental use, and may
require rules and procedures for the use of the channel capacity
designated pursuant to this section.

(e) Editorial control by cable operator. Subject to section 624(d) [47
USCS 544(d)], a cable operator shall not exercise any editorial
control over any public, educational, or governmental use of channel
capacity provided pursuant to this section, except a cable operator may
refuse to transmit any public access program or portion of a public
access program which contains obscenity, indecency, or nudity.

Mediacom gives as its reason for optimism:

"the Turner, Denver Area and other cases have left open the question of
constitutionality of the Cable Act's public access channel requirement."
(November 20 brief) "The Supreme Court left open the door for challenges
to the pubic access channel requirements of 47 U.S.C. 53 1(a) and its
related non-censorship provisions." (October 30 brief)

Mediacom only specifies "public access" programs in these quotes. That
is because only public access regulations were before the Court in
Denver. However, the three justices who were open to eliminating public
access programs, Thomas, Scalia, and Rehnquist, were open to it for
reasons which apply equally to Educational and Government access
channels: they simply saw cable companies as private businesses with as
much right to decide what channels to carry, and what should be allowed
on them, as I do to decide what goes in my music store.

Mediacom claims to have the support, for its position, from city
officials:

Mediacom has communicated with the City of Des Moines and other
municipalities that have granted it franchises in the central Iowa area
about its rejection of the segment of Plaintiffs public access
programming. The governmental officials have not objected to Mediacom's
exercise of its independent rights in connection with this issue and
have not advised that Mediacom is in violation of any ordinance,
franchise agreement or law.

Mediacom does not say what impression, of the potential scope of this
suit's impact on the city, these officials received from Mediacom. Nor
do we know how many, or which, officials are privy to the potential for
upheaval. Even if Mediacom promises in blood, today, that they will
never ask for elimination of educational and government access channels,
I can't think of an argument in Denver for elimination of public access
channels that doesn't equally apply to educational and government access
channels. And once elimination of public access channels is secured, I
cannot imagine cable companies are so passionate about giving free time
to schools and city councils that they will tell the courts, "Oh, no! We
cannot stop giving away free time to schools and city councils! You must
leave the law in place that requires us to give to them!"

The reason I make these points is (1) to make sure something immense
doesn't slip by under cover of being small; (2) to argue to the Court
that any decision about eliminating Public Access channels is not likely
to be confined only to these channels; and (3) to put the following
quote, about just who wants to upend the "status quo", in perspective:

Plaintiff seeks to change the status quo and to use the Court to force
Mediacom to disseminate progranmiing content it has rejected in its
editorial discretion.

Original Issue? Mediacom thinks it is pioneering a new issue before the
Court which no prior Court has yet contemplated. I discern only slightly
different words for the same issue which every cable censorship case had
to first address, in the course of establishing jurisdiction.

Indeed, the undersigned are aware of no reported decision wherein a
court considered the issue presented here- whether a government mandate
that on one hand forces cable operators such as Mediacom to set aside
valuable bandwidth [at trial, Mr. Purcell said they haven't used it all
up] for public access programming and on the other takes away that same
operator's ability to edit or otherwise be able to exercise some
discretion over the content they are being compelled to carry runs afoul
of the First Amendment.

Compelling Speech? Mediacom complains,

Just as the First Amendment may prevent the government from prohibiting
speech, the Amendment may prevent the government from compelling
individuals to express certain views, []or from compelling certain
individuals to pay subsidies for speech to which they object.

Were the government to force me to state publicly, on TV, "I love
abortion", as might actually happen in a Communist country, that is an
application of "compelled speech" which indeed Americans find repugnant.
But when the government forces me to hire someone even though they are a
member of a church which approves of abortion, because employers may not
discriminate on the basis of religion, that is an application of
"compelled speech" which Americans expect. Americans understand there is
no association between the views of my employee and my own. Likewise the
law prohibits me, as a business owner, from refusing to serve customers
with religious views of which I disapprove.

Compelling me to support another's speech would be unAmerican were I as
an individual forced to pay for the salary of a preacher at another
church. But it is the American system to compel me to pay a state sales
tax so politicians can meet every year to gripe about how little of it
they have to spend. Circumstances affect when "compelled speech" is
right or wrong.

If I, as an individual, were entrusted with control over the ability of
thousands of others to express themselves, more impartiality might be
expected of me as a condition of my stewardship of that responsibility.
In fact, a commitment to impartiality would be demanded of me by any
responsible city, before even awarding me that stewardship, through a
franchise. The city does not care what I put in my music store, because
if there is a demand for what I refuse to sell, another store will come
to meet the demand. But if some physical limitation permitted only one
music store in the city, and the City Council had to choose one of many
applicants to operate it, the Council would award the franchise based
partly on the commitment of the applicants to carry a wide variety of
music and services capable of meeting the diverse needs of the residents
of the city.

I have to pay for the city to pave my street frontage so strangers can
drive across it, even when I don't agree with them. In fact, most
Americans would consider it unreasonable of me to refuse to pay for
paving my frontage, and for my veto to prevail over it being paved, so
that the whole rest of the city, traversing my street, would travel a
nice clean paved road until it came to my home where they would get
stuck in the mud. Likewise were I, as a private individual, to accept a
city contract for street repair, I would forfeit my Free Speech right,
as the City has already done, to refuse to pave streets in front of
citizens with whom I did not agree.

Ironically, Mediacom's rush to criticize Denver's refusal to expand
Mediacom's censorship powers (but rather to diminish them) as unfair,
invokes a principle by which the censorship it seeks is equally unfair.
Mediacom argues,

Further, any regulation that promotes one speaker to the detriment of
the other presumptively invites judicial scrutiny. See Buckley v. Valeo,
424 U.S. 1, 48-49 (1976) ("the concept that the govermnent can restrict
the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment.").
...Mediacom undeniably is being forced to speak by Plaintiff and by the
government as a result of the application of ~ 531(b) and (e) in this
case. Courts have long been skeptical of compelled access to carriage,
as "Government-enforced right of access inescapably 'dampens the vigor
and limits the variety of public debate."'

Mediacom's hypocrisy is in rejecting the Supreme Court's balancing of
"competing interests" in favor of a system where Mediacom's own
government-created monopoly, through whatever personal prejudices it may
hold, would "restrict the speech of some elements of our society in
order to enhance the relative voice of others". (Steve Purcell's
affidavit points out Des Moines gives Mediacom a "non-exclusive
franchise", technically, but Purcell conceded on the stand he had no
idea whether installing a duplicate set of cable wires across Des
Moines, which would be necessary before any competitor could enter the
market, would be practical or feasible.)

By what theory would allowing Mediacom to engage in content-based
censorship increase the vigor and variety of public debate in Des
Moines? Mediacom cites "Wolley v. Maynard, 430 U.S. 705, 713 (1977)
(holding state could not compel motorist to display "live free or die"
on license plates)". Of course, forcing all individuals to say the same
thing "dampens the vigor and limits the variety of public debate"; but
here we are talking about forcing one gatekeeper, to the self-expression
of thousands of others, to carry information without content-based
restrictions.

Ripeness and Rottenness. Mediacom calculates it was three months before
I bothered to "request" airing of my pictures, so obviously I must not
place any urgency on them, so why should the Court?

10 Although Mediacom first advised Plaintiff in August 2002 that
segments showing aborted fetuses and identifiable women would not be
aired, Plaintiff did not request cablecasting of the objectionable
segments until November 13, 2002. His own delay shows his harm is not
immediate and irreparable.

In saying I did not "request" airing of my photos until November 13,
Mediacom is not counting the several shows prior to August in which I
not only "requested", but had aired, my version of "I Walked Today Where
Jesus Walked" including video of a dismembered baby. Nor does Mediacom
count the tape I brought in August 23 (only on August 22 had Mediacom's
reversal of policy been announced, saying my video would not be aired)
that contained the same video on it, along with video of a decapitated
baby's head which had already aired on TV 8 and TV 13. (I didn't leave
the tape at Mediacom after Deborah Blume told me if I left it they would
air it in the middle of the night. Blume made me take the tape back home
to blur the images she didn't like.) Nor does Mediacom count my many
efforts to settle these issues out of court, beginning with the tape I
presented August 26, which Mediacom had told the world they would
preview, in which I covered the slain baby pictures in the news
broadcasts with the text "Not allowing us to show pictures to children,
which they have already seen on the 6 o'clock news, is probably not
lawful". That show ended with the notice, "We are studying the law, and
praying that this censorship will end without a lawsuit."

Mediacom isn't counting the many oral communications I had with Deborah
Blume and Steve Purcell, and the many shows in which I presented my
findings of law, knowing Blume would be watching, and hoping her hard
line of censorship would soften. There was my September 27 letter to
Mediacom, my October 1 meeting with Blume and Purcell, my October 4
phone conversation with Purcell, his October 8 answer, and finally my
letter of approximately October 9 to about a dozen Mediacom executives
listed on their website, explaining the issues, my understanding of the
law, and pleading with them not to make a lawsuit my only hope of relief
from these issues. Last but not least, Mediacom does not count the
October 15 filing of my lawsuit, requesting authorization to air those
photos.

Mediacom had told me earlier my issues would not be "ripe" until I
submitted the tape, but now the November 20 brief implies the issue has
already become rotten before it even had a chance to ripen. I didn't
think it necessary to enter these communications into evidence, because
they did not seem relevant. And they still don't: Mediacom submits no
evidence that I have NOT previously requested airings of these photos,
but it is obvious that Mediacom understands it was my intention to air
those photos in August, or they would not be on record telling the world
August 22 that they would not air them. But if opportunity serves, and
it seems material, evidence of most of these facts is available for
inclusion in the record.

Mediacom counts only my "request" of November 13, which I formally
submitted after receiving assurances they would accept a second tape for
actual airing in lieu of the first tape which they vowed they would
censor, and they would not count my submission of the unwanted material
a violation invoking their 3 months' suspension.

Congress doesn't really care. Mediacom argues that Congress doesn't
really care if cities require cable companies to provide PEG (Public,
Educational, and Government access) channels, so therefore it doesn't
matter if cities care and, in fact, require PEG channels as a condition
of their city-granted franchise. Only Congressional action reflects the
"public interest", not city action.

Thus, Plaintiffs right of access is created by a city ordinance, which
by its very enactment triggered application of the no-censorship
provision of 47 U.S.C. 531(e). If the public interest rested in
compelling access, Congress could have required public access channels.
Instead, the only Congressional directive is the no-censorship clause,
which itself imposes upon free speech and free press rights.

Congress doesn't require that radio stations, or TV stations, or
newspapers exist either, but only regulates those that do exist.

$50,000 Bond. Mediacom would impose upon me a financial cost of
continuing my show which would be the same as shutting me off the air,
since I do not have the resources to post a $50,000 bond. Under
"Plaintiff cannot obtain preliminary injunctive relief without posting a
 substantial bond", Mediacom makes its case for levying a $50,000 bond
upon me, should the Court allow me to air my photos, to offset the
liability Mediacom anticipates.

Questions worth asking are (1) is Mediacom's anticipation of successful
litigation reasonable? (2) Is Mediacom's expectation of litigation
colored by prejudice against a political and religious position? (3)
Would even the certainty of litigation necessarily constitute legal
justification for tipping the balance away from someone's Free Speech
rights? And (4) is there a role for courts, who are champions of the
First Amendment but who also determine the success of litigation, in
creating conditions in which the threat of litigation cannot
unreasonably chill legitimate First Amendment rights?

I have tried to keep my eyes open to the threat of litigation since
before Mediacom decided not to air my photos. I have considered each of
Mediacom's arguments, and not just with a mindset of shooting it down,
but with a real concern for whether there really is a credible legal
threat. The Court is obviously more expert in such matters than myself,
but I just can't see it, so my argument must be, until it is explained
to me otherwise, that my photos are safe from any reasonable threat of
successful litigation, and Mediacom has no basis for its fear.

The strongest argument for the slightness of liability created by
filming abortionists' customers is the fact that Neal Horsley, who has
been doing the same thing for over a year on his website, has faced no
litigation. Nor has anyone that I know of ever, in America, been
successfully sued for posting photos of slain babies in public. I have
been told there have been successful lawsuits against authorities who
attempted to stop such displays, but I have no cites.

In Becker, wherein a federal candidate sought to overturn a TV station's
veto of his campaign advertisements containing slain babies, even a
warning of potential litigation was regarded as "censorship". I would
appreciate, not resent, a mere friendly warning made in good faith. But
I see the application of the Court's concern to my case where Mediacom's
fear of litigation, on very shaky grounds approaching paranoia, and
coupled with a demand for a $50,000 bond, looks like an excuse for
shutting me down for no good reason. Becker:

In Radio Station WPAM, 81 F.C.C.2d 492 (1980), after initially refusing
to run a candidate's potentially defamatory advertisement, Station WPAM
informed the political committee that was paying for it that "the spot
would be broadcast "as is', but stated that [the committee] would
thereby risk the consequences of a later lawsuit" for defamation. Id. at
493. As a result, the candidate revised the text of his advertisement.
Id. The Commission observed that were it not for WPAM's intimidating
actions in the present case, i.e., [its] initial refusal to accept the
announcement as submitted, followed by grudging acceptance coupled with
a threat of subsequent legal action, the candidate would not have been
required by the sponsoring Committee to revise the spot. We believe that
this result was reasonably foreseeable. We further believe that the
actions here constituted censorship, within the Supreme Court's
definition in WDAY, Inc. ... in violation of Section 315(a) of the Act.

Id. at 495. It concluded by "serving notice ... that in the future any
attempts by a licensee to coerce a candidate to revise his political
announcement, albeit by threat of litigation or otherwise, will be
considered censorship...." Id.

...In D.J. Leary, 37 F.C.C.2d 576 (1972), the FCC affirmed that a
licensee may not require a candidate to execute an agreement to
indemnify the licensee against liability resulting from the candidate's
political advertisement because such an agreement "is likely to inhibit
a candidate's use of a broadcast facility and possibly to affect his
decision on whether to utilize a station to address the public."

...See also Port Huron Broadcasting Co., 12 F.C.C. 1069, 1072 (1948) (to
permit the restriction of potentially libelous material would allow
broadcasters to "set themselves up as the sole arbiter of what is true
and what is false[,] ... an exercise of power which may be readily
influenced by their own sympathies and allegiances," and give
broadcasters "a positive weapon of discrimination between contesting
candidates which is precisely the opposite of what Congress intended to
provide in this section").

 

Conclusion

The two categories of photography I seek to air: photos showing what
abortion does to babies, and photos of abortionists' customers
introduced only as people going in and out of an abortion office, with
no representation that we know the purpose, identity, or address of any
individual shown, (and with any other disclaimer Mediacom or the Court
would care to suggest), cannot be censored for any sound reason. (1)
They are not "obscene", since they contain no sexual material. (2) They
contain no "nudity" in any prosecutable sense. (3) They create no
credible threat of liability, or any other "emergency situation" which
justifies setting aside the First Amendment. (4) They effectively
articulate the evils identified by a political and religious position of
roughly half our nation, proving an indispensable aid to a legitimate
political and religious position. (5) Censorship of them does
irreparable harm to the Truth, which does irreparable harm to America.

Therefore Mediacom's censorship of them should be restrained by this
Court.

Appendix

The Use of Graphic Photos of Aborted Children in the Public Forum

A Rational and Biblical Defense

http://www.killbabies.com/graphicphotos.html

By Cheryl Sullenger

Many well-intentioned people have questioned the public use of large
graphic aborted baby photos by some pro-life groups on the streets of
America. This paper will attempt to list the Biblical and historical
precedent for such public displays and the observable effects produced
on individuals and society. It will also deal with commonly expressed
objections regarding the use of the signs in the public forum.

Biblical and Historical Precedent

The first Biblical example regarding the use of graphic public displays
is found in Judges 19-20. Here we read the story of a Levite who had
traveled with his concubine to Gibeah in the land of Benjamin. Some of
the lewd Benjamites besieged the residence where they sought refuge and
demanded the Levite come out so they could sexually abuse him. Instead,
the concubine, a harlot, was sent. She was brutally and repeatedly raped
throughout the night and died from her injuries even as she struggled
back to the very threshold of the home where her master was staying. The
Levite took her body home where he cut her into twelve pieces and sent
her dismembered remains throughout Israel as a testimony to the
outrageous crime committed by the Benjamites. Once the assembled people
heard the Levite's story they "rose as one man" (Judges 20:8) in unity
of purpose against the Benjamites where the Lord justly gave them
victory over their wicked and corrupt enemy.

There were four noteworthy elements in this Biblical account.

· There was a perceived injustice (in this case, a brutal murder).

· A graphic display was sent throughout the public, which exposed the
injustice.

· The graphic display acted as a catalyst uniting the people in purpose.

· The united people were spurred to action bringing about social justice
or change.

This tactic has been used successfully throughout history to bring about
a variety

of changes in society. One such example is the story of William
Wilburforce who labored with little fruit against slavery in England
until he began taking his friends to visit the actual slave ships and
view first-hand the public mistreatment suffered by the slaves. His
friends rose up "as one man" and began to act on that knowledge,
eventually bringing an end to slavery in England.

More recently, graphic images from the Viet Nam War flooded into the
living rooms of Americans during the nightly broadcasts of the evening
news. These images sparked the anti-war movement and forever changed the
way Americans view warfare.

Dr. Martin Luther King, Jr. often staged events for the benefit of the
media, which inevitably ended in violence by whites against his peaceful
protesters. Because of this tactic, for which he was often criticized,
all of America witnessed for the first time in public what had been
happening in private for decades. King used the media to force America
to confront racism. These images on the evening news lead to a change in
the hearts of the people and advanced the cause of civil rights.

The animal rights movement has also been successful in furthering their
cause through the use of graphic displays. Today, people do not buy seal
fur because of the images of baby seals being beaten bloody by hunters.
Film of whalers stripping the flesh off harpooned whales helped lead to
a moratorium on harvesting the animals. Many consumers check the labels
of shampoos and other products to make sure they were not tested on
animals after viewing the pathetic pictures of test rabbits with their
fur falling out. (Could it be that the preborn children of America are
of less value than a seal, a whale, or even a rabbit?)

History is replete with such examples; the ultimate of which was
employed by Jesus Christ Himself. He could have shed his blood in a
dungeon, out of sight and out of mind, so as not to offend anyone's
sensibilities. But He chose instead to allow Himself to be brutally
beaten beyond recognition, paraded bloody and bruised through the
streets of a crowded Jerusalem, then hung naked on a cross for all the
world to see, including whatever children may have passed by. This
graphic picture of Christ's suffering for our sins has been the catalyst
which has inspired innumerable people to come to the salvation which His
public sufferings purchased for us. Few Christians complain of the
graphic depiction of Christ on the cross, which is publicly displayed in
so many of our churches. Those who contend that Christ would never
publicly display graphic material, especially in view of children
conveniently forget this image of our crucified Savior.

One would be hard put to find one successful social movement that did
not contain the four elements of Judges 19-20.

Biblical Mandate

Ephesians 5:11 states "And have no fellowship with the unfruitful deeds
of darkness, but rather expose them." The large graphic photos expose
the heinous truth about abortion in an unsurpassed way. Unlike other
modern social movements, the media has been unwilling to take images of
injustice against the unborn to the public. Pro-life activists have
struggled one city, one neighborhood, one person at a time to expose the
grim truth about the plight of the unborn. The large graphic photos are
a crucial tool, which has successfully allowed Christians to fulfill the
Biblical mandate to expose evil.

Positive Effects

A variety of things occur once the light has been shown on the evil deed
of abortion. For many people, their hearts are broken. Abortion
supporters have been converted to the pro-life position. Countless
laborers have been brought into the pro-life movement spurred to action
after seeing the tiny broken bodies of abortion's innocent victims.
Hundreds of abortion-minded women have changed their minds about killing
their unborn children and have turned away from the abortion mills after
viewing the pictures.

These trends are documentable. Numbers of abortions are down according
to statistics obtained from the Center for Disease Control and the Alan
Guttmacher Institute. The national abortion ratio (number of abortions
per 1000 live births) decreased from 314 in 1996, the first year the
large graphic photos began appearing across America, to 305 in 1997, the
lowest of any year since 1975. Also in 1997, (the last year for which
official statistics are available), the number of abortions fell to
1,184,758, a decrease of 3% from 1996 and nearly 15 % from the 1990
figures.

Notice the significant drop in abortion statistics in 1997. This is not
coincidental. Several noteworthy things began happening around 1996.

1. The large graphic photos of aborted babies began to be used on the
public streets of hundreds of cities across America through Operation
Rescue's "Show the Truth" campaigns.

2. Operation Rescue began displaying the large photos at high school and
college campuses, targeting the age group of women most likely to seek
an abortion.

3. The partial birth abortion debate erupted in the United States
Congress. Graphic drawings of the partial birth abortion procedure began
to be widely publicized.

Then, in October of 1997, the Center for Bio-Ethical Reform, led by
Gregg Cunningham, began its Genocide Awareness Project displaying large
graphic displays of aborted babies interspersed with Jewish Holocaust
and racial discrimination victims on college campuses all over the
country with stunningly positive results. He reports babies saved and
opinions changed in favor of the pro-life position. The correlation
between the advent of several graphic display campaigns and the drop in
the abortion rate appears to be not coincidental, but causal!

Sidewalk counselors who display the graphic aborted baby photos have
observed this national trend in the San Diego area. Tracking changes
over the past ten years they report decreases in the amount of traffic
entering abortion clinics as well as increases in the number of women
who change their minds about having an abortion whenever the graphic
signs are used.

At a Family Planning Associates abortion mill in La Mesa, California,
approximately 50 babies are scheduled for termination on a typical
Saturday. Without the signs sidewalk counselors often find it hard to
keep up with the volume and sometimes must speak with two to three women
simultaneously. They report typically observing 25-30 women entering the
building over a three-hour period. When several of the signs are
displayed, the traffic into the parking lot slows to a trickle and
sidewalk counselors may, under those circumstances, observe under ten
women entering for abortions during that same three-hour period.

Planned Parenthood has stated the fact that the signs adversely affect
their abortion business in sworn court documents in a case that centers
on the use of graphic materials in front of their San Diego facility. (
Wilkerson v. Scott case number 728883)

The San Diego sidewalk counselors have tracked the number of babies
saved from abortion through their efforts over the past ten consecutive
years. In 1995, the year before the large graphic photo signs first
appeared in San Diego they recorded eight children saved through their
sidewalk counseling ministry. The number of Christians regularly
ministering at the clinic on a monthly basis was between 5-10
individuals. Only one clinic had a regular pro-life presence. The
following year, 1996, eleven babies were reported as saved from
abortion, the majority in the second half of the year, after the signs
were introduced. In 1997, there were about 20 babies saved and in 1998,
about 30. At this same time there began to be a marked increase in the
numbers of pro-life participants in picketing and sidewalk counseling
efforts. In 1999, over 40 babies were confirmed saved and sidewalk
counselors were beginning to cover more clinics over more days.

In 2000, the number of Christians ministering at clinics in the San
Diego area on a monthly basis has grown to approximately 100. At least
three clinics are covered on a weekly or twice weekly basis. Over 50
babies were documented as being saved from abortion at clinics where
graphic signs were used. The elements of Judges 19-20 are evident:

1. Christians have identified the injustice of abortion.

2. Graphic displays of the injustice have been publicly introduced.

3. Christians, pricked in their hearts over the plight of the unborn
have united in purpose against abortion.

4. In increasing numbers Christians are taking to the streets,
multiplying the effect, and bringing about changes which include fewer
abortions.



Negative Effects?

It is sometimes suggested that because some people react to the graphic
displays with anger and hostility, this negative reaction may indeed
negate any good done by the signs and may in fact drive women to obtain
abortions. Some have suggested that the negative response of the public
to the signs actually will cause the pro-life cause to loose the war
against abortion because it is a poor Christian testimony to the world.
As always, it is important to look at the answer to these assumptions
from both a factual and scriptural viewpoint.

Factually, we can see that the statistics do not support the premise
that the pictures are causing people to abandon the pro-life cause
and/or obtain more abortions. In fact, evidence already stated herein
shows the opposite actually happening÷more lives are being saved and
more people are being converted to the pro-life position. There is an
increase, at least in one community where the signs are employed, in the
numbers of Christian activists working to stop abortion. These are the
facts.

Scripturally, John 3:19-20 is revealing:

And this is the condemnation, that the light has come into the world,
and men loved darkness rather than light, because their deeds were evil.
For everyone practicing evil hates the light, lest his deeds should be
exposed. But he who does the truth comes to the light, that his deeds
may be clearly seen that they have been done in God.

When Christians obey the scriptural mandate of Ephesians 5:11 and expose
the unfruitful deeds of darkness, those who do those deeds will hate it.
It is a natural and expected response that the Bible prepares us for.
The duty of Christians is to expose and to warn. They do this out in the
open where their "deeds may be clearly seen." However, Christians who
expose sin can expect to be hated and persecuted by the world. Jesus
explains why this is so in John 15:18-19:

If the world hates you, you know that it hated Me before it hated you.
If you were of the world, the world would love its own. Yet, because you
are not of the world, but I chose you out of the world, therefore the
world hates you.

Christians who seek the approval and accolades of the world or wish to
avoid its persecution are in danger of conforming to and compromising
with a system God has called them out of. According to 2 Timothy 3:12,
"Yes, and all who live godly in Christ Jesus will suffer persecution."

The fact that the vast majority of Americans today are "of the world"
and not "of Christ" insures that Christians, especially those who expose
evil, will be unpopular with the majority of people. Being hated by the
world is a natural and expected consequence of a godly person living in
obedience to scripture. It is therefore unfair and unbiblical to accuse
Christians with graphic signs of being a poor Christian testimony
because they evoke the anger and hatred that the Bible says they must.

Any prophetic message that exposes evil will have two effects on the
hearers. They will either express sorrow for their sin, or they will
harden and rebel. Because a majority of people may harden at the message
that does not mean that the message should be stopped for fear of
offending them. On the contrary! Ezekiel 3:16-19 is to the point:

Now it came to pass at the end of seven days that the word of the Lord
came to me saying, "Son of Man, I made you a watchman for the house of
Israel; Therefore hear a word from My mouth, and give them warning from
Me; When I say to the wicked, 'You shall surely die,' and you give him
no warning, nor speak to warn the wicked from his wicked way, to save
his life, that same wicked man shall die in his iniquity; But his blood
will I require at your hand. Yet, if you warn the wicked, and he does
not turn from his wickedness, nor from his wicked way, he shall die in
his iniquity; but you have delivered your soul." (Emphasis added)

The Scriptures are clear. If a man fails to warn the wicked, he commits
sin and shares in the guilt. If a man does warn, he is obedient and
therefore held guiltless.

Some have attempted to accuse Christians that use graphic photos of
actually causing abortions. This is saying that the warning messenger,
fulfilling Ephesians 5:11 and Ezekiel 3:19, is responsible for the sin
of abortion. This turns the scriptural teaching of responsibility on its
ear! Women may continue on with an abortion in spite of being warned of
the consequences, but not because of the warning just as wicked Judah
continued her rebellion to God in spite of Ezekiel's warnings. To blame
Christians who hold the graphic signs of causing abortions is like
holding Ezekiel responsible for the Jews being taken captive by the
Babylonians. It is an absurdity!

In fact, there is not one documented case of a woman who was going to
keep her baby changing her mind and aborting as a result of viewing the
graphic aborted baby signs.

Another aspect of the argument against the signs is that they cause
people who may have had abortions to experience unpleasant or hurtful
feelings after viewing the pictures in an uncontrolled environment.
Again, this can hardly be considered a negative aspect. Is it really
desirable to have a society of people that can murder their offspring at
will, then have positive feelings about it?

Street activists can testify to the fact that most people who stop and
respond negatively to the signs have been involved in an abortion
decision. They become angered because the light has been shined on their
evil deed. People need to feel bad about the abortion they were involved
in. Only once they face what they have done and admit it was wrong could
they ever find forgiveness and healing. It is not in their best interest
to "protect" or shield people from feeling bad about their sin. In fact,
this is destructive behavior, which is often exhibited by families of
alcoholics and drug abusers, only serves to enable the abuser to
continue in his sin. Sorrow is a necessary first step to repentance.
Note 2 Corinthians 7:9-11:

Now I rejoice, not that you were made sorry, but that your sorrow led to
repentance. For you were made sorry in a godly manner, that you might
suffer loss from us in nothing. For godly sorrow produces repentance
leading to salvation, not to be regretted; but the sorrow of the world
produces death.

Those who have had or encouraged abortions sooner or later must confront
their sin and feel sorrow for it or healing and forgiveness cannot
occur. Street activists displaying the graphic photos of aborted
children perform the unpopular but necessary function of confronting a
public in denial about abortion who so desperately need to seek
forgiveness at the cross.

Since viewing the photos, many men and women have indeed repented from
the sin of abortion and have sought healing. This public ministry has
often born eternal fruit as some have even been led to Christ on the
street after having hearts broken by the graphic displays. But what of
those hurting people that drive on and are not ministered on the spot?
When God starts a work in a person's heart, He is fully capable of
finishing it. It is important to trust that God will continue working in
their lives and will eventually lead them to where they can find help
and healing.

But children view these!

Probably the most often voiced objection to the public display of the
graphic photos is that children view them. Often it is assumed that the
photos will emotionally traumatize a child. Activists with several years
of experience on the street with the signs have noted that the pictures
do not adversely affect children as long as the parent remains calm and
reasonable. Many parents use the opportunity to teach their children
about life and reinforce their love for their kids. Children only become
upset when the parents respond angrily, stop to verbally abuse the sign
holders, or even physically attack the signs. When the children see Mom
or Dad behaving in ways that frighten them, they also become upset.

Christians who have exposed their own children to the graphic materials,
some nearly from birth, report no ill effects in their children. In
fact, these children often develop a deeper sense of compassion for
women and babies affected by abortion. Several activist families have
had the joy of seeing their teen-aged or adult children accept Christ
and enthusiastically adopt the pro-life ministry as their own
multiplying many times over the work of their parents.

Conclusion

The public display of graphic photos of aborted babies is a proven and
effective tool. Scriptural principals support it. The photos save lives,
convict the guilty, change hearts, cause the hurting to seek help,
inspire activism, and will eventually be a part of transforming society
as far as the abortion issue is concerned. The signs stand as a
prophetic warning to America against the sin of child killing and have
raised the overall awareness of the general public to the plight of the
unborn.

Those who oppose the graphic materials are free to conduct their
ministry as they see fit without criticism from those who are supportive
of the signs. The opposite should be true as well. However, those who do
not support the graphic photos have been publicly expressing their
disagreement and disapproval of the signs with increasing frequency and
acrimony. What possible benefit is there to showing such public discord?
Jesus stated in Matthew 12:25:

But Jesus knew their thoughts and said to them: "Every kingdom divided
against itself is brought to desolation, and every city or house divided
against itself cannot stand."

God forbid that the pro-life movement would allow itself to be a house
divided provoking God to wrath! Disapproval of tactics should be
expressed privately and in a spirit of humility, lest the Enemy win the
day.

In light of the factual benefits and Scriptural support, the graphic
signs have earned a place as a valued tool in the pro-life arsenal.
Those who display them are due the respect of the rest of the pro-life
movement and if not their respect, then (at least) their silence.

 

Published by the

California Life Coalition

PO Box 712772, Santee, CA 92072-2772

(619) 562-3519; e-mail: califecoalition@juno.com

 

 

 

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

Des Moines IA 50309-2053

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