Access to Indecency

A Michigan cable access television producer fights his conviction for on-air ‘indecent exposure’

From the Summer 2004 issue of The News Media & The Law, page 36.

By Tejal Shah

More than four years after h is arrest for criminal in decent exposure in Michigan, Timothy B. Huffman continues to contend that his First Amendment rights have been violated.

“My father served in World War II and the Korean War and risked his life so that we could enjoy our constitutional rights,” Huffman said. “I’m still in this fight because I believe the Constitution was built for people like myself. These past four years have become an everyday, life-consuming project and I’m glad to belong to something so important. If the First Amendment does not apply to me, then it has no meaning.”

Huffman, 46, was convicted in January 2003 for criminal indecent exposure after painting a face on his penis and using it to perform a three-minute comedy skit on public access television. The skit, starring “Dick Smart,” was part of a half-hour adult variety show that aired on Grand Rapids TV six times over 18 months.

“I did nothing illegal,” Huffman said. “Offensive television is not illegal. Frontal nudity has been on broadcast television and cable television before. The local judiciary and prosecutors are publicly lynching me to keep this type of entertainment off Grand Rapids TV.

“Television entertainment is protected speech,” he added, “and my program is a federally protected form of speech with artistic merit or value.”

Grand Rapids District Court Judge Michael Christensen disagreed, refusing to allow Huffman to even make a First Amendment defense.

“The statute is not aimed at suppressing one’s First Amendment freedom of speech,” Christensen said. “Expressive conduct, not pure speech, is regulated, and the statute’s application to conduct protected by the First Amendment is, at most, minimal.”

Judge James Redford of the Circuit Court in Grand Rapids upheld that decision on appeal, ruling in November 2003 that Huffman’s “actions were improper and indecent conduct as judged by the standards of the community of Grand Rapids.”

Both courts agreed with the prosecution’s argument that cable access television represents the “public forum,” where community decency standards apply. In the district court decision, Christensen held that “the indecent exposure statute is, in fact, applicable to nudity in cable programming, and that the statute is constitutional.”

“Merely because defendant’s conduct appeared on a public access television channel does not provide him with immunity from the indecent exposure statute,” Christensen held.

Huffman was sentenced to a year of probation, fined $500 and ordered to pay $1,000 in costs for his probation, which included alcohol and drug screening. A second conviction for public indecency in front of a child could carry a prison sentence of up to life.

Huffman’s defense attorneys say both courts ignored U.S. Supreme Court case law protecting freedom of speech. If the conviction is upheld, lawyers for Huffman say, it will be a green light for state prosecutors nationwide to vigorously proscribe cable indecency, despite the lack of authority even Congress and the Federal Communications Commission have to regulate content on cable or satellite programming.

ACLU attorney Peter Armstrong, who is defending Huffman in his upcoming appeal to the state appellate court, the Michigan Court of Appeals, said there is no precedent under the state criminal indecent conduct statute to convict someone for recording and later airing an image on television.

“The court applied an expansive interpretation of the statute because they didn’t like Mr. Huffman’s program . . . mere nudity alone in a medium of expressive conduct on cable cannot be prosecuted,” Armstrong said, citing the potential chilling effect of such judicial actions.

“If this conviction is upheld by the court, then any TV program airing in Michigan could be prosecuted,” he added.

Attorney Peter J. Hopkins, who represents two Washington, D.C.-based public television advocacy groups — Alliance for Communications Democracy and Alliance for Community Media — said the government lacks the legal authority to regulate cable TV as it can network stations. The two advocacy groups filed a friend-of-the-court brief with the state appeals court.

Hopkins said Huffman’s program is protected by the First Amendment because “cable is different than network television. It is a paid service with a lockbox that allows a person to prevent a child from being exposed, and it is invited into the home rather than broadcast involuntarily.”

The Supreme Court said as much in the 1996 case Denver Area Educational Telecommunications Consortium v. FCC, striking down efforts by Congress to ban or regulate indecent material on cable television. The high court struck down a provision in the Cable Television Consumer Protection and Competition Act of 1992 permitting the FCC to enforce regulations allowing a cable operator to ban public access programming containing “obscene material [or] sexually explicit conduct.”

A “statutory provision permitting a cable operator to prohibit patently offensive or indecent programming on public access channels violates the First Amendment,” the court ruled 5-4 in a decision involving multiple concurrences and dissents.

Moreover, such a provision would be upheld only if it were “appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to ‘patently offensive’ material,” the court held.

Huffman said the segment starring his penis always aired after 10 p.m., in respect of the local community and in line with FCC regulations — the agency requires indecent network and radio programming to air during the “safe harbor” time slot of 10 p.m. to 6 a.m. “Tim’s Area of Control” has always been advertised as an “adult humor variety show,” he said.

If Huffman’s conviction is upheld, said Dirk Koning, executive director of the Community Media Center, which operates GRTV, the damage to free speech will likely extend far beyond television.

“This conviction opens up a whole new realm of challenges to speech,” said Koning, who is also the president of the Alliance for Communications Democracy. “Where will it stop? Will a photographer who displays electronic representations of penis photographs in a gallery be liable for public indecency?”

Tim McMorrow, assistant prosecuting attorney for Kent County, calls this debate “much ado about remarkably little.” Because cable operators are required by law to carry public access channels, McMorrow said, these channels are subject to different rules than paid premium channels, like HBO or ESPN.

“This case is not about prohibiting speech,” McMorrow said. “This case is all about whether he exposed himself in a public place. And a public access channel is a public place. . . . I can’t imagine this prosecution will have a chilling effect on HBO and Hollywood from making indecent movies.

“The government has a right to say you can’t expose yourself in public,” he added.

The Michigan Court of Appeals will hear arguments later this year. The court will decide whether the indecent exposure statute applies to television programs, and, if it does, whether the First Amendment was violated by an impermissible speech restriction.

Although Huffman said he’s confident the state appeals court will side with him, he also said he is prepared to take his case all the way to the U.S. Supreme Court.

“You can’t please everyone,” Huffman said. “There will always be critics and people who are offended by other people in their communities, but this is America.

“People have told me and GRTV that my show is the funniest thing they have ever seen,” he added. “And if the conviction is overturned, I intend to bring back ‘Dick Smart’ . . . and maybe other body parts as his friends.”