Polishing Up Censorship

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.

Lake County PEG Board Excludes Politics from Free Speech

There are few controls allowed on what citizens can put on their public access channels. No editorial control on content is legal. The term “political” is a content category not on the short list for exclusion. Nevertheless, the Lake County PEG Board passed the following content restriction over my strenuous objections.

3.5 No election related programming which favors one candidate or ballot measure shall be broadcast. Candidate forums which are public and give equal opportunity to all candidates may be broadcast. Ballot measure forums which are public and give equal opportunity to all parties may be broadcast.

Apparently, this government dominated board feels I do not have the right to use my public access channel to editorialize on ballot issues or promote candidates with new ideas. Its gets even worse. Ed Robey, Lake County’s representative, has rammed through a ban on all political programs “until the Board adopts a policy on political programs” even though TV8 has been on the air for 14 years.

At the last PEG Board meeting I was able to attend, ED Robey acting as Chair, bragged that a recent small claims complaint against the Station forced him to learn all about public access. Robey had acted boldly over the years without seeking any information about what was legal. I had been complaining that the Board had been acting as illegal censors since its inception. So I asked Ed, “So how much of your research dealt with Designated Public Forum law (The legal basis for a PEG Station) His one word answer: “None.”

If the current and past Lake County PEG reps had any interest in the law they would have kicked over gems like “Conrad v. Southeastern Promotions (1975)”, dealing with prior restraint, or “Grayned v. Rockford (1972)”, describing the test for “time, manner, and place” limitations, or the big Kahuna of public forum doctrine “Perry Education Association v. Perry Educators Association (1983), that finally cleared up the exact definition of each type of public forum with their rights and powers.

There is an amazing irony in the certainty of Lake County, Clearlake, and Lakeport representatives about how much power they think they wield over the citizens mouthpiece. The Sue Buske Group was hired to negotiate new cable franchises around 1998. Her team included an attorney to advise them on all matters legal, concerning franchises and public access. This attorney’s name is James Horwood. Any authorities preferring truth over plausible denial should check out his article, “Political Speech and PEG Access: A Legal Analysis”, Community Media Review, Winter 2002-2003.

It would not take an afternoon in a law library to learn that courts have consistently applied the “strict scrutiny” test on any public forum restrictions, demanding that they serve “a compelling State interest.” In other other words, the legislature must pass a law first before the local goobertocracy invents a new way to cut up our 1st Amendment for fish bait.

I have an opinion, based on hours of internet searches after the 2009 conspiracy against TV8, that the Lake County PEG organization has the most hostile attitude toward free speech in the Country. I’m sure many people who agree that public access has been wronged in Lake, still think this judgment is over the top. But consider these two facts: No franchiser is legally required to have a PEG Station. Cities and counties that oppose putting citizens voices on a par with theirs, simply will not ask for a PEG channel. Problem solved. Over two-thirds of the franchisers don’t have PEG channels. The others feel, on balance, that public access is a civic asset.

The only example I’ve found of a PEG station whose operations are regularly and psychotically attacked by the entity that created it is TV8 in Lake County. When I attempted to be the first outsider to use TV8 in 2004 government officials were shocked and angrily responded. The only theory I’ve come up with for this behavior is that Lake County and the city of Clearlake thought they could squeeze all the PEG equipment goodies they could from the cable franchisee without sharing them with a public that they despised. As far as I know, this puts Lake County in a small, mean, and arrogant category all by itself.

If its not obvious, once again I’m asking the Board of Supervisors to demand Ed Robey’s resignation and to educate themselves as to controlling public forum laws.

Lake County Supervisor Race Upgrade

In Lake County the hot election to watch this year is the District 3 Supervisor race. Hot is a relative term.  In Lake County “hot” is luke warm anywhere else.

The reason local power scrambles are such snoozers is the lack of real time media events.  These could be either hosted events or spectacles produced by the candidates themselves.  We are lucky if we get an occasional recorded “talking heads” word salad.

Not only is the public bored by such orchestrated tedium, the candidates themselves can barely stand it, begging off appearances for the least excuse or no excuse at all.  My own candidate video project focused on 5 local issues.  I videotaped an editorial on each one then invited candidates to schedule a time for me to video their responses.  The final product would be stitched together into one program.  What could be easier for a candidate?…  Advance topic notice. No time conflicts. Unedited video exposure.  The result:  Out of six candidates, three didn’t answer me.  One said “catch me if you can.”  An inspiring list of two participated.

Maybe to get active interest from the public and participation from candidates we need to focus on America’s highest value – entertainment.  This means no more candidates sitting stiffly on stage while a host asks beauty pageant type questions off cards from the same group of gadflies and wanna be pundits.

How would I shake things up?  We need some right brain thinking here.  First on my list is a poetry slam where the candidates move and groove their qualifications and make the issues flow.  This could be followed by a weekly videotaped “whistle stop” bike ride tour around the District. Someone who has let their body go to Hell would probably let the County go to Hell.

Tired of candidates who haven’t done their homework?  How about a game show to test candidates’ nuts and bolts knowledge of government procedures and pressing issues.  Winner gets an endorsement with a point total.

What we don’t need is another slate of obstructionists with tunnel vision.  Make candidates reveal how three-dimensional they are with a talent show.  Or show the public they really have nothing to hide with a clothing optional hot tub discussion at Harbin.  For once, our future leaders can start out in hot water.

And for the dramatic two person races we can reasonably take the truly high road.  Have speech forensics teachers select an important single local issue for a structured “Yale Debating Society” style debate to be scored by judges according to debate rules. Candidates should have at least a month to research and prepare.

But for this election I think the only thing that can be done is to parody the characters who imposed themselves on our ravaged attention spans.