Agenda Packets - 1988/05/02 - Laserfiche WebLink

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Memorandum March 30, 1988 Page 5 Further, the determination of obscene material must be made on a case -by -case basis. In other words, the city could not merely forbid the transmitting of channel 34 or adult programming in general, but each work would have to be reviewed by the decision -makers to determine whether, in their opinion, the work was obscene. Since the Company could sue and request a judicial in- terpretation as to whether a work is "obscene", the cities could have a major constitutional legal challenge on their hands regarding each work offered on cable channel 34. Your franchises refer to the exclusion of g2Lnogaphiic material (a lower standard than "obscene"). The Federal — Communications Policy Act does not explicitly authorize a franchising authority to regulate material which is porno- graphic, however, it does permit the regulation of porno- graphic material in the franchise agreement in the event that such pornographic material, like obscene material, is determined to be not protected by the Constitution and pro- vided over the cable system. Section 624(d)(1). The prob- lem with this Section is that it permits a franchising authority to regulate the carriage of pornographic material, provided that such regulation of pornographic material is subsequently found to be constitutionally permissible by a court of law. Assuming that a court of law would apply the Miller test, it is highly improbable that any such attempt .t _rcg„llati-., onuld hp unheld. The Senate Report accompanying an early version of Senate Bill 66, a precursor to the Cable Communications Policy Act of 1984, suggests that "the imposition of sanc- tions for the determination of a breach of the franchise in the absence of a judicial determination that particular speech was obscene or otherwise unprotected by the Constitu- tion," was not permitted. S. Rep. No. 98-67, 98 Con., 1st Sess. 25 (1983). However, similar language was not inclOed in the House Report and is therefore not definitive legisla- tive history for the Act. It does indicate that there was discussion regarding the prior restraint of otherwise pro- tected "speech", and a representative of the Company could argue that, absent a prior judicial determination as to the protection of pornographic material by the Constitution, a local authority could not regulate that material.