Fans of adult-oriented public access television may not have to adjust their bed times after all.
A City Council proposal that would permit sexually-explicit programming on the city’s two community TV stations to air only after midnight is unconstitutional and must be dropped, said the American Civil Liberties Union in a letter to the city last week.
Adult programming is permitted to air between 10 p.m. and 6 a.m. as is recommended by the Federal Communications Commission and followed by nearly every public access station in the country.
Berkeley’s proposal, which would move shows later and provide screening of programming, violates the First Amendment, wrote ACLU attorney Ann Brick.
In trying to protect children, the law would deny adults access to constitutionally protected programs, she said.
Instead of moving the shows to a later time, Brink wrote, Berkeley should encourage parents to request that cable operators block the stations or provide parents with a device that allows them to block offensive shows.
Complaints from residents about some public access shows led council to vote 5-3 in support of stricter restrictions. The ordinance will go into effect after a second affirmative vote scheduled for Sept. 10.
The two shows most criticized are “Frank Moore’s Unlimited Possibilities” and “The Dr. Susan Block Show.” Susan Block is shown at 10:30 p.m. Fridays and features a lingerie-clad sex therapist whose guests have included women masturbating and provocatively touching one another.
The ordinance would direct the station’s operator, Berkeley Community Media, to install a commission to judge the decency of programming when a viewer complains.
Shows deemed to provide no literary, artistic or political merit and that appeal only to sexual interest and offer offensive depictions of sex would be banned until midnight. Council must approve the framework devised by BCM for grading its programming before it can take effect.
Brink wrote that placing the burden on BCM to determine the value of its programs would put undue pressure on the media group to curtail artistic expression.
“This aspect of the ordinance is almost sure to chill First Amendment expression, thereby frustrating the very purposes for which BTV was established,” she wrote.
Brian Scott, BCM Media Director, said he would be uncomfortable as the final arbiter of “indecency.”
“As soon as we make that decision we lose the trust of the community and people call us censors,” he said, adding that if the ordinance passed, he would ask City Council to form a commission to rule on complaints.
Scott said only two residents have complained to him, but Councilmember Betty Olds defended the ordinance, saying that she had received eight to 10 complaints in the past six months about the Susan Block show.
“When they bring a camera close to a women’s crotch and try to insert a disabled man’s penis into a vagina – if you don’t call that bad taste, I don’t know what is,” she said. “[The ordinance] isn’t just [to protect] children. Other people want to view public television and they don’t want to see it there.”
But Councilmember Kriss Worthington, who opposes the ordinance, said that if Berkeley implements the most restrictive censorship policy in the state its passage would send a message to other cities to do the same. If council passes the ordinance, the sexually explicit shows could remain on air until council approves a committee to judge the programming.
But an attempt to move the shows to after midnight only could embroil the city in a lawsuit.
Frank Moore, a performance artist who includes nudity in some of his shows said his show was not “indecent” and that if the committee found otherwise, he would sue the city.
The ACLU has sued the city previously. In the most recent instance, the organization was successful in making Berkeley repeal Measure O, a 1994 ballot initiative that prevented homeless from lying on sidewalks.
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