It's now up to three Michigan judges to decide whether cable nudity can be legally prohibited in Michigan.
A three-judge panel of the Michigan Court of Appeals has heard oral argument in the appeal of a lower court ruling that local indecent exposure laws can be used to crack down on cable.
In the first case of its kind, the American Civil Liberties Union took over the appeal of a Grand Rapids, Mich., man convicted of indecent exposure on a local cable program.
ACLU Attorney Peter Armstrong joined others in arguing Feb. 9 that the conviction was a violation of the First Amendment as well as of Fourteenth Amendment "due process" protections against overly broad statutes. There was no reasonable expectation that the local statute would or could be used to trump First Amendment protections on cable speech, the ACLU argues.
Armstrong said the judges appeared to have boned up on the case, but he wouldn't predict the outcome, pointing out that the conviction had already survived a circuit court appeal when he would have guessed otherwise.
The January 2003 conviction resulted from a three-minute segment of Timothy Bruce Huffman’s March 2000 Friday-night half-hour show on GRTV, the public access channel in Grand Rapids, Mich.
The access show featured a penis with a face painted on it delivering bar jokes. Instead of invoking TV obscenity prohibitions, Kent County prosecutors went after the penis as a violation of the state's indecent-exposure law.
A trial court and circuit court agreed with the state that the cable-access channel was a “public place” and that the exposure was conduct, not speech, and thus not protected by the First Amendment.
According to Steve Savickas, Huffman's court-appointed attorney at the time, the judge instructed the jury that submission of the tape to the cable channel made it a public forum. The jury convicted, he was put on probation, and the initial appeal was rejected.
The January 2003 conviction effectively trumps cable’s hallowed First Amendment protections and, if it survives, could give other jurisdictions a road map for regulating cable indecency and obscenity regardless of whether the FCC or Congress decides to expand the federal definition of broadcast-TV indecency laws to include cable and satellite TV.
The heads of both the Senate and House Commerce Committees last week indicated they would like to target cable indecency for regulation.
“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 pretrial 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.”
Armstrong wouldn't say if the ACLU would appeal if the conviction is gain upheld. It could either ask for an en banc hearing by the full appeals court or take the case to the Michigan Supreme Court.