First Amendment End Run

Michigan trumps cable's speech rights by convicting a man of indecent exposure on TV; ACLU appeals case
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Timothy Bruce Huffman was convicted of exposing himself on TV. In the first case of its kind, the American Civil Liberties Union has taken over his appeal.

A three-minute segment of Huffman's Friday-night half-hour show on GRTV, the public access channel in Grand Rapids, Mich., 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 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.

On the offending segment of Tim's Zone of Control, a penis—46-year-old Huffman does not publicly claim ownership—surrounded by a blue-and-white handkerchief, is seen full-frame while a voice tells jokes.

After receiving a complaint about the show, Grand Rapids police searched in vain at the offices of GRTV, located on the second floor of a public library, for videotape, according to Dirk Koning, executive director of the Community Media Center, which operates GRTV.

Police then raided Huffman's home, seized the show tape, and charged him with indecent exposure. They claim that the act of giving the tape to GRTV to air constituted public exposure. The location of the exposure in the complaint is GRTV's address. "Gestapo tactics," says Koning, "for a three-minute clip of a flaccid phallus."

Koning also chairs the Washington-based Alliance for Communications Democracy, which handled Huffman's early appeals, and is a board member of the Western Michigan chapter of the ACLU, which is handling the latest one. Because GRTV has declined to comment, Koning spoke to B&C as chair of the Alliance.

In the January 2003 trial, Kent County prosecutors drew a distinction between the basic package of cable networks that includes public-access channels, and the pay tiers that carry adult-oriented programming like Playboy channel. Because the access channel is a public forum, they argued, the exposure was public indecency.

Prosecutors had help in making that argument to the jury: the judge. In his jury instructions, Judge Michael Christensen said, "If you find beyond a reasonable doubt that the defendant videotaped his penis or the penis of another person and submitted that videotape to a public access television station, that the station in fact ran the videotape, and that someone in the public would reasonably be expected to observe this, this would establish the element that this be done in a public place."

In his decision, the judge was even clearer, concluding that "the indecent exposure statute is, in fact, applicable to nudity in cable programming and that the statute is constitutional." Huffman was sentenced to one year of probation.

In another penis-puppet case, the FCC fined Young Broadcasting's KRON San Francisco $27,500 in January for a local-morning-show interview with stage troupe Puppetry of the Penis. During the segment, one of the "puppets," actually a man's penis, was inadvertently exposed. Steve Savickas, Huffman's court-appointed attorney for the original trial, points out that indecency on cable, by contrast, is protected speech.

ACLU attorney Peter Armstrong says one key issue is whether the Michigan indecent-exposure statute applies to a TV show and, if it does, whether that violates First Amendment speech protections and Fourteenth Amendment protections against unduly vague and overbroad laws. The ACLU is betting it does and hopes to expose the unconstitutionality of the conviction.

Contacted at his home, Huffman said, "The segment was non-obscene, non-provocative, non-sexual. It had run for 18 months without complaint. They didn't even let us use the First Amendment as a defense or introduce other nudity on cable. I think [the court] dug itself a hole."

If the case is overturned, Huffman says he might re-create the trial on the channel using penises to play judge, jury, and lawyers.

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