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Show i I For O I Against Q i ! Initiative I A CABLE T.V. DECENCY ACT I Official Ballot Title: Should a law be adopted in the criminal code dealing with cable television programming, program-ming, which defines indecent material and makes the distribution of indecent or obscene material over cable television a class A misdemeanor for individuals or a moral public nuisance for a cable television distribution company. i i IMPARTIAL ANALYSIS Proposal The proposal amends state law to provide criminal and civil penalties for knowingly distributing obscene or indecent material ocr cable television. Current Law The federal government through the Federal Communications Commission (F.CC.) has the authority to generally regulate television broadcasting. This includes providing standards which prohibit indecent material being broadcast. The current state criminal laws make it illegal to distribute obscene material. This would include programming over cable television. In addition, the legislature in 1983 enacted the "Cable Television Programming Decency Act". The 1983 act provides that distributing indecent material as a continuing course of conduct over cable television is a public nuisance. The 1983 legislation provides a civil penalty of up to $1,000 for a first offense and up to $10,000 for a second offense. This act is currently before the Federal District Court in Utah to determine the constitutionality of the law. Proposed Amendment The proposal is additional legislation to regulate the content of cable television programs. The proposal is essentially a i duplication of existing state law in making the distribution of obscene material a criminal act. The proposal also provides an j additional civil penalty (loss of business license) for distribution of obscene material that does not exist under current law. In addition to prohibiting obscene material the proposal also makes the distribution of indecent material illegal. The proposal is like the 1983 "Cable Television Programming Decency Act" with a few key differences. The primary difference is that the 1983 act provides only a civil penalty for continuing violations (public nuisance); the proposal provides criminal and civil penalties for any violation. Legal Sufficiency The First Amendment to the U.S. Constitution protects generally the rights of free speech. This right, however, is not an absolute right. For example, the U.S. Supreme Court in interpreting the First Amendment has held that material deemed to be obscene maybe prohibited. Miller v. California, 413 U.S. 15 (1973)). In addition to the Miller standards for obscenity, the supreme court has also recognized the authority of the F.CC to regulate the broadcasting over radio of "indecent material" which is not obscene. F.CC. v. Pacffka Foundation, 438 U.S. 726 (1978)). The Cable T.V. Decency Act (Initiative A) seeks to expand the concept of regulation of nonobscene but indecent material over cable television. The proposed legislation raises fundamental First Amendment Amend-ment questions over the scope of the state's authority to regulate free speech. All such regulatory efforts will be reviewed by the courts with extreme caution and examined very carefully. This particular legislation is even more restrictive than existing legislation dealing with cable television programming. As such, court approval is less likely for it than for the existing law. In addition to the First Amendment issues, a recent U.S. Supreme Court decision has raised additional questions about whether cable television programming is under the control of the F.C.C., thus preempting state regulation. Capital Cities Cable v. Oklahoma Alcoholic Beverage Control Board, 52U.S.L.W. 4803 (1984)). All of the constitutional and other legal issues raised by this initiative will ultimately be resolved through court determinations. Fiscal Effect The proposal will not have any significant fiscal impact. Arguments for This ballot proposal would require of Cable television the same standard of broadcast decency that is required of network television. The effect of this measure would be to require Cable broadcasters to disseminate over Cable television material that is of the same standard of decency as that which is broadcast by the major networks, which are regulated by the Federal Communications Commission. There would be no more stringent requirement made of the Cable broadcaster under this statute than the Federal Communications Commission now requires of the network broadcasters. This statute is being submitted to the people of the State because it is well documented that Cable programs in the State of Utah have carried increasingly indecent and i obscene material. In these programs have been depictions of deviant sexual acts which have been presented in graphic detail. It is beyond denial that the Cable systems have repeatedly broadcast material which would never have been shown over network television. The spokesmen for the Cable industry will attempt to distort the issue by asserting that "there are already laws against the broadcast of pornographic material in Utah." The seeming truth of that statement is totally beside the point since, in fact, the burden of proof for present laws which were drafted for the prohibition of printed pornography make it almost impossible for any prosecutor to effectively utilize existing law against a Cable broadcaster. The State Legislature has enacted a Cable Broadcast statute which is presently before the federal courts as to its constitutionality. A final decision on that statute has yet to be issued. The people of the State can further protect themselves against the dissemination of indecent material over Cable Television by the enactment of this ballot proposition. The effect of this proposition will be to provide St te and local law enforcement officials with an additional .v; i.pon that contains not only criminal but civil sanctions for i he violation of the statute. Legitimate constitutional issues such as those in the First Amendment are not jeopardized by this statute. The stat ute clearly provides that the exhibition of the proscribed material must be done in amannerto intentionally appeal to a morbid interest in sex or excretion. That type of programming which may reveal the human body in nudity but which is clearly for educational, scientific or literary purposes would not be proscribed by this statute. The p .j.iirement for a jury to conclude that the broadcaster intended to disseminate material which was a violation of the statute more than protects any individual aBuinst a possible infringement upon their constitutional wmBmmmtmMmMmmmmMMmmmnimMmMwmmmmmmmmmmmmmmmmm The author of the Ballot Proposition has had twenty years of experience in legal confrontation with the pornography porno-graphy industry. It is his opinion as a lawyer licensed to practice in the State of California, before the Federal Courts, and the Supreme Court of the United States, that the proposition is constitutionally valid and one which will protect the people from the unnecessary and undesired exhibition of indecent material over Cable television. Mr. John Harmer Chairman, Citizen's Commission for Yes on Initiative A 2953 South 300 West, Salt Lake City, Utah 84115 Rebuttal to Arguments against Initiative A The proposed cable "decency" law now on the ballot was originally presented to the Utah Legislature in 1983. After careful review by the Attorney General, legal advisers, and legislative leaders, this law was overwhelmingly rejected. Even the most ardent supporters of cable programming restrictions have recognized the obvious legal defects of this law. The Legislature rewrote the law and did pass a substitute law, Senate Bill 309. The substitute law is now under review by the federal court. Passage of this referendum will inevitably result in yet another legal challenge. Even the Attorney General, who must defend this law if passed, has expressed publicly his view that the law is seriously flawed, and has recognized the likely outcome of such a legal challenge. The whole issue of regulating cable TV programming is presently being litigated. Serious questions have been raised as to whether federal law has preempted any state regulation of cable programming. Additionally, numerous First Amendment Amend-ment questions have been raised and have yet to be answered by the U.S. Supreme Court. Answers to these questions will be provided as the present case, Community Television v. Wilkinson, winds its way through the judicial process. To pass another state cable law before some of the questions already raised by prior laws are answered is premature and unproductive. Regardless of one's personal opinions of cable programming program-ming laws generally, the wisdom of rejecting this particular referendum should be apparent. Mark E. Carter, President Utah Cable Television Operators Association P.O. Box 6045, Salt Lake City, Utah 84106 James K. Bunnel Director of Public Affairs Utah Cable Television Operators Association P.O. Box 6045, Salt Lake City, Utah 84106 Arguments Against Freedom of choice is what Cable TV is all about. Cable TV offers an array of programs, including sports, news, and for those who want to invite it into theirhomes, movies. It is the optional movie channels which this law seeks to, in effect, censor. Instead of trusting Utah residents to pick and choose what they want to watch, this proposed cable law seeks to make that choice for us. Obviously, not all movies are for everyone, and some are clearly inappropriate for children. The same is true for programs on regular TV. The solution is parental control and supervision, not a state mandated law which permits programming that is only fit for children. To aid parents in controlling access by minors to inappropriate material, the cable industry offers numerous means of controlling Cable TV fare. Fust, every parent has the option of not subscribing to the movie channels even if the other cable channels are desired. Second, the cable companies provide program guides which clearly warn parents in advance of those programs which are adult oriented. Third, the cable companies provide "lock-out" boxes which allow parents to turn off channels when they are not home to supervise their children. Every subscriber invites cable into his or her home on terms which the subscriber dictates, and it is t he subscriber who has the obligation and right to control cable, not the State of Utah. This referendum is the fifth attempt in recent years by various municipalities and the state legislature to impose a law censoring what they term "indecent material". The most recent attempt, passed in 1983, is presently winding its way through the courts. Similar laws have been held unconstitutional. unconstitu-tional. It seems exceedingly foolish to once again adopt a law which faces the exact legal problems faced by the earlier law. The cost of defending such laws are enormous. Even those who support such laws must recognize that the wiser course is to wait and see how the courts treat an almost identical law before passing a new one. As each voter evaluates the cable issue, it is critical that a distinction is made between pornographic and obscene material and so-called "indecent" material. The cable operators of this state have consistently supported laws which ban obscene and pornographic material. Utah already has such a laws. This referendum, however, attempts to restrict material which is not obscene, but which may be offensive to some. Virtually all movies which contain scenes involving nudity, such as Kramer v. Kramer, fall within the ban imposed by this new law. In summary, this new cable law is unwarranted intrusion by the State into the home. The solution to unwanted programming is to either not subscribe 01 to tilili.c one of many means to restrict access to minors. In any evenl, Utah can ill afford yet another expensive legal buttle, especially since an almost identical law has already been passed and is presently under review by the Federal Court. Mr. Mark E. Carter President, Utah Cable Television Operators Association P.O. Box 6045 Salt Lake City, Utah 84100 Mr. James K. Bunnell Utah Cable Television Operators Association PO, Box 004" Salt Lake City Utah 84106 Rebuttal to Arguments in favor of Initiative A The Statute requires of Cable television ihat it adher to the same standard of decency as network broadcast television. The opponents would have yon believe that "Kramer v. Kramer" could not be shown on Cable Television if this statute is passed. That argument is untrue. "Kramer v. Kramer"as been shown many times on regular network television simply by omitting one 45-second frontal nudity scene. This statute would require the same of Cable. Nothing of any redeeming value would be omitted from Cable broadcasts by the requirements of the statute. Not all parents monitor what is being viewed by their children or in the homes of their children's friends. Program guides are irrelevant, and so-called "lock nut boxes" are easily by passed. The evidentiary requirements for present Utah statutes 1 against pornography make it totally impossible to effect ively utilize them against Cable obscenity. The Cable industry asks for "freedom of choice." It is I freedom of choice of all the people that is the issue. Those J people who choose not to have in their home vile, de.genei a1 ' N material. Those people who choose not to have I heirehiM.,''" exposed to this type of material in their own hwnt a neighbors. Those people who choose to have a eomimuiilv in which decency and dignity are preserved. This statute will not deprive anyone of fieee.m :!' choice to have filth. It will simply protect those who wis), choose a detent society and a decent eonumiuitv L. ;: the intrusion of degenerat e material. Mr. .:!'.n ',- M um' Chairman, Citizen's Comm1- -wii I-, Yes ii li 2!I.".'1 Smith "'!' Salt Lake -ii , .!'. COMPLETE TEXT OF INITIATIVE A CABLE T.V. DECENCY ACT AN ACT RELATING TO THE CRIMINAL CODE; PROHIBITING THE DISTRIBUTION OF OBSCENE AND INDECENT MATERIAL OVER CABLE TELEVISION; DEFINING INDECENT MATERIAL AND OTHER TERMS; AND PROVIDING PENALTIES. THIS ACT ENACTS SECTION 76 10-1230, UTAH CODE ANNOTATED 1953. Be it enacted by the Legislature of the State of Utah upon Initiative Petition Filed with the Lieutenant Governor: Whereas it is the right and duty of the citizens of the state of Utah to protect the moral standards of their communities, to enable the cit izens of this state to be free from indecent and obscene material; and, Whereas the Supreme Court of the United States in the case of Federal Communications Commission versus Pacifica Found-at Found-at ion held that the transmission of indecent material must of necessity yield to a higher standard of accountability than is required of a publisher of matters which are printed; and, Whereas in the state of Utah cable franchisees have transmitted matter of an indecent, obscene, and highly offensive nature, and which if allowed to continue would result in very harmful exposure of our citizens and of our youth to indecent and morally destructive materials; Now, therefore, be it enacted by the legislature of the State of Utah, at its general session for 1983, as follows: SECTION 1. Section 76-10-1230, Utah Code Annotated 1953, is enacted to read: 76-10-1230 (A) It is unlawful for any person to knowingly distribute within this state any obscene or indecent material by means of cable television. (B) It is unlawful for any person to knowingly distribute within this state any obscene or indecent material by means of cable television or enhanced cable television services. , (C) It is unlawful for any person to knowingly distribute or broadcast within this state any obscene or indecent material by means of cable television or enhanced cable television services or any other broadcast or transmitting capacity w hich is not subject to regulation by the Federal Communications Communica-tions Commission insofar as the decency content of the broadcast material is concerned. (l) It is the int ent of this statute to regulate the decency content of material broadcast andor transmitted for recept .ion in the state of Utah where there is no valid federal statute or regulation governing the decency content of such material or where the Federal Communicat ions Commission has specifically declined to exercise jurisdiction over the s.inii-. (E) The provisions of subsection (A), (B), and (C) are not intended to interfere with or preempt the power of any political subdivision of this state over franchises or the authority of a local political subdivision to regulate obscenity or indecency in a manner which is not inconsistent with subsections (A), (B), and (C). (F) Nothing in this section shall apply to the distribution of material as defined in subsection (A), (B), or (C), if regulation of such material, insofar as decency content is concerned, is preempted by either valid federal laws or valid federal regulations. (G) "Material" means any visual display shown on a cable or other television system, whether or not accompanied by sound, or any sound recording played on a cable or other television system. (II) "Distribute" means to send, transmit, retransmit, telecast , broadcast, or cable cast by any means, including by wire or satellite, or to produce or provide material to send, transmit, retransmit, telecast, broadcast, or cable cast. (I) "Knowingly" means having general knowledge or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of the nature and character of t he material involved. A person has such knowledge when he or she knows or is aware of the nature and character of the material, whether or not such person has precise knowledge of the specific contents thereof. Such knowledge may be proven by direct or circumstantial evidence, or both. (J) As used in this section "indecent material" means a depiction, representation, or verbal description of: (1) A human sexual or excretory organ or function; or (2) A state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing the prurient appeal purposes of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or (3) An ultimate sexual act, normal or perverted, actual or simulated; or (4) Masturbation; and (5) Flagellation, torture, or other violence indicating a sadomasochistic sexual relationship; which the average person applying contemporary community standards for the television medium would find is presented in a patently offensive way. (K) "Community" shall mean the geographic area within t he state of Utah which received the distribution, and in the case of a cable or enhanced cable services television distribution, the area served by the cable franchise. (L) "Enhanced cable television services" means television services which do not originate with broadcast sources which are regulated by the federal government insofar as program content is concerned. SECTION 2. (A) Any person who violates the provision of Section 1 hereof is guilty of a Class A misdemeanor. (B) Any television distribution company which is twice convicted of violating the provision of Section 1 hereof shall be deemed to constitute a moral public nuisance and may upon recommendation of the state Attorney General to the Lieutenant Governor be suspended from doing business within the state of Utah for a period of one year. SECTION 3. SEVERABILITY CLAUSE If any word, clause, sentence, paragraph, or part of this statute or its application to any person or circumstance shall for any reason be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect, impair, or invalidate the remainder of this statute or its application to other persons or circumstances, but shall be confined in its operation to the clause, sentence, paragraph, persons, or circumstances, or part thereof, directly involved in the controversy in which the judgment shall have been rendered. |