On August 12th County Counsel Anita Grant made a report to TV8’s PEG Board on their free speech policies. She briefly outlined the legal rights of PEG station users that our citizens have demanded since this government dominated board was formed 8 years ago. The PEG Board members responded to the Counsel’s report as if this information was all news to them.
The County Counsel emphasized that programming decisions must be “content neutral” except for several categories narrowly defined by the Supreme Court. Her source was an issue of Community Media Review. It sounded like the one I had passed around several years back. However, the County’s PEG representative, Ed Robey, has indicated in past PEG meetings his intention to bypass this restriction by using the “time place manner” legal concept to schedule offending political programs late at night when few people will see them.
The Counsel appeared to be giving the green light to this strategy when she assured the PEG Board that they could use the “time place manner” provision in scheduling. She did not indicate that there were legal criteria to prevent this concept from being used as censorship by another name.
The current crystallization of elements that must exist for time place manner to be employed is listed and explained in “”Ward v. Rock Against Racism” 1989. In this binding decision, employing time place manner must not be content specific. But also the time restriction must be narrowly tailored and serve a “significant government interest.” Once employed, the restriction must leave ample alternative means to convey the message.
The Counsel’s remarks did not show awareness of this requirement. When the PEG Board programmer asked, “I am allowed to accept 10 videos on 1 candidate?” Grant responded, “That’s an administrative function that’s a time place manner restriction.” She did not give an example of an administrative action that would not be a content restriction in this case.
Counsel added, “You don’t want to set up a circumstance where 1 candidate CoOps the station.” This statement was curious. How can TV8 “set up a circumstance” when the station is open to all residents on an equal basis? If by CoOp the station she meant only supporters of 1 candidate chose to use the station then she is ignoring the fact that different campaigns will choose to use different strategies. You can be sure that a campaign that draws significant contributions to run mass mailings and media ads will not be encouraging their supporters to produce campaign videos for TV8. That’s for poor people.
I cannot think of a single way that an administrative action designed to curtail residents from submitting candidate videos that would not fail one or more Supreme Court tests under Ward v. Rock. Historically, these tests are derived from time place manner concepts developed in “Grayned v. City of Rockford” 1972, citing examples from numerous other cases for context. These contexts almost exclusively deal with noise, blocking traffic, and denying other people the use of parks.
These are clear government interests. Providing cover for government subterfuges would be an abuse of time place and manner. One cited example is two parades cannot use the same street at the same time. This does not mean that government has the right to schedule all non Chamber of Commerce parades at 3 a.m. in the morning.
The message was that the PEG Board needed to display the right motives when impeding residents’ political activity. Setting aside “X blocks of time” was not to ghettoize the people’s voice but rather to “make sure everyone has access.” This ignores the fact that TV8 has so much dead time that they haven’t even bothered asking for the two extra channels they are entitled to. Although the Counsel gave mundane examples of normal time place manner such as “production standards” and “allocating time among competing users” she seemed to be implying that anything that the PEG Board wanted to add to the list was legitimate. It is not.
The irony of Grant quoting from the Community Media Review article was that it was written by the attorney for the Sue Buske Group. This was the firm that advised the County and Clearlake in the late 1990’s on franchise and PEG issues. Probably these consultants recommended sending out a “Request for Proposals” (RFP) to interested non profits that would get government out of the free speech business. This is how functioning PEG stations operate. Ask Ukiah. Ask Willits. Ask Fort Bragg. Ask Humboldt County. Ask Weaverville (Weaverville!!!!!).
A local government attorney’s job is to reduce the city or county’s legal exposure as much as possible. Transferring public access functions to non profits clearly does this. But trying to convince politicians on boards to defer to citizens’ civil liberties is always a waste of time in the long run.