In a five-line decision published with no fanfare late last month, the Michigan Supreme Court has refused to review the case of a cable access television programmer convicted of "open or indecent exposure" for showing a dressed-up cock delivering a comedy routine on the Grand Rapids public-access cable channel, GRTV.
The "offense" took place in March and April, 2000 in the late evening, during presentations of the 68th episode of Timothy Bruce Huffman's cable show, "Tim's Area of Control."
"The episode included a three-minute segment in which a flaccid penis and testicles marked with facial features were the only objects within camera range," wrote Judge Richard A. Bandstra for the three-judge panel of the Michigan Court of Appeals. "During this segment, a voice-over was heard identifying the penis character as 'Dick Smart' and providing purportedly humorous commentary as if on behalf of the character."
The court quoted some of Dick Smart's dialog, though it's unclear whether the excerpts were provided by Huffman or someone else – but in any case, we present a representative sample from the material quoted in the appeals court opinion:
"Yeah, I was in the grocery store the other day a guy comes up and he says 'hey, you're a dick' I says yeah so are you, ha, ha. I can't believe it, yeah, yeah, yeah, yeah, yeah, I was in the army ya know, yeah, yeah, I didn't do much, ya know what I mean? I just hung around (laughter). Yeah, yeah, so I was walking down the sidewalk the other day and ya know I was just looking around and I don't know about you, but when I see a good looking woman and it's kind of balmy out and I kinda change I'm like a Doctor Jekyll and Mr. Hyde kinda guy (laughter). Ya know what I mean some people, I had a woman tell me the other day she thought I looked like Hulk Hogan (laughter) I said yeah, you crazy stupid bitch, Hulk Hogan, hell, he's rich, yeah I'm just some dick head I just ya know I make people laugh, I get a couple of bucks ya know what I mean everyone's gotta eat, ya know what I'm sayin."
Scintillating stuff, to be sure – but once again, a court has set itself up as an art critic – "purportedly humorous commentary" — even though the basic charge was one of indecent exposure.
"At issue here is whether televising an image of a naked penis is an 'open or indecent exposure' under the language of the statute," wrote Judge Bandstra. "Defendant argues that '[t]he application of this statute or, indeed, any indecent exposure statute, to television or film images is unprecedented.' While that may well be the case, defendant points to no authority holding that the language of this statute, or any similar statute, does not encompass televised images."
Trouble is, the statute doesn't have to; the U.S. Supreme Court has already dealt the issue of televised sexual expression – and the fact that the "defendant points to no authority holding that the language of this statute, or any similar statute, does not encompass televised images" doesn't excuse the Michigan Appeals Court from doing its homework.
"It [the conviction] is spectacularly wrong and at odds with well-established Supreme Court precedent," remarked Robert Corn-Revere, a D.C.-based First Amendment attorney with the firm of Davis Wright Tremaine. "I think too that in other situations where governments have alleged public nudity in situations that are not public, even peepshow booths, courts have pretty uniformly held that that's not a public place like walking around naked on the street."
Even more to the point is a case that Corn-Revere knows very well: United States v. Playboy Entertainment Group, where Corn-Revere represented the defendant.
"Playboy's right on point," Corn-Revere explained, "because one thing that the government argued in that case is that — it compared signal bleed, indecent signal bleed from adult cable channels to conduct and to the kind of secondary effects that you can regulate through zoning statutes, and the court basically said no, you can't compare those kinds of physical attributes and zoning decisions to what appears on cable television; it's purely a content-based regulation, subject to strict scrutiny."
But the appeals court opinion doesn't deal with the Playboy case until well into its discussion. First, it tries to come to grip with the "public" part of "indecent exposure" by quoting from People v. Vronko, where the state appeals panel in that case noted that "[t]he gross indecency statutes seek to protect the public from the possibility of being exposed to certain acts of sexual conduct. Such conduct is grossly indecent 'when an unsuspecting member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act.'" Further, the panel noted that "open exposure" under MCL 750.335a has been defined as "'any conduct consisting of a display of any part of the human anatomy under circumstances which create a substantial risk that someone might be offended.'"
To attempt to apply those findings to a cable television program is to turn the concept of substantive due process right of privacy completely on its ear. For one thing, basic cable programming is not "broadcast" over the public airwaves; subscribers must pay a monthly fee to receive it in their homes, and the Federal Communications Commission has stated several times that it has no jurisdiction over cable programming "indecency" as it does have with over-the-air fare.
Moreover, in the Playboy decision, the Supreme Court struck down §505 of the Telecommunications Act of 1996, which required cable television operators who provide channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children were unlikely to be viewing, on the basis that the fleeting glimpses of sexually-explicit material that cable subscribers could see because of "signal bleed," offensive as those might be, did not outweigh willing subscribers' right to see such material 24 hours a day.
"Our precedents teach these principles. Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities 'simply by averting [our] eyes'," wrote Justice Anthony Kennedy in Playboy, quoting that last phrase from the high court's 1971 decision in Cohen v. California.
The law doesn't get much more on point than that.
"I didn't even know the guy had taken it up to the supreme court," noted Michigan-based First Amendment attorney Bradley Shafer, "but certainly, given our supreme court, that [opinion] would not be unexpected. Our supreme court is probably the most conservative of any supreme court in the country."
An article on the case in Broadcast & Cable News suggested that "a Washington firm may take the Michigan case to the Supreme Court pro bono" but a spokesman for the Michigan ACLU Legal Director Steve Shapiro, whose office handled the trial of the case, doubted that a petition for certiorari to the high court would be granted.
"I think the decision was wrong," Shapiro said, "but absent any disagreement in the lower courts or some evidence that the problem is widespread beyond Michigan, I think the chance the court will take the case is pretty slim."
That situation may change, though. With religio-conservative groups pushing heavily for the FCC to have jurisdiction over cable and satellite "indecency," they may also attempt to have cases similar to Huffman's brought before conservative state court jurisdictions, which may create the very diversity that as yet does not exist, thereby making the issue ripe for high court review.
In any case, Corn-Revere noted that he had not been approached by Huffman or his counsel to petition the U.S. Supreme Court for review.
