Cable Speech In Jeopardy


In the first case of its kind, the American Civil Liberties Union has taken over the appeal of a Grand Rapids, Mich., man convicted of indecent exposure on a local cable program.

A three-minute segment of Timothy Bruce Huffman’s 2001 Friday-night half-hour show on GRTV, the public access channel in Grand Rapids, featured a penis with a face painted on it delivering bar jokes. Instead of invoking TV-obscenity prohibitions, Kent County prosecutors concluded that the segment
violated Michigan’s indecent-exposure law.

A trial court and circuit court agreed, finding that the cable-access channel was a “public place” and that exposure was conduct, not speech, and thus not protected by the First Amendment. Now it’s up to the Michigan State Court of Appeals to weigh in.

The Janruay 2003 conviction effectively trumps cable’s hallowed First Amendment protections and could give other jurisdictions a road map for regulating cable indecency-regardless of whether the FCC or Congress decides to expand the federal definition of broadcast-TV indecency laws to include cable and satellite TV. In the appellate brief to be filed this week, ACLU attorneys say they can find no precedent for the conviction of Huffman for his April 7, 2000, show.

“The application of the statute to filmed images will expose television programming, movies, videotapes, and even books and magazines to prosecution,” said Huffman’s lawyers in securing the appeal. A verdict upholding the decision could have wide-ranging consequences for cable speech.

In his decision to deny a pretrail motion to dismiss, the judge put the cable threat even more clearly, concluding that “the indecent exposure statute is, in fact, applicable to nudity in cable programming and that the statute is constitutional.”