HomeMy WebLinkAboutAgenda Report - January 19, 1983 (31)REGULAR CALENDAR Agenda Item K-1 - Consideration of request for passage of Ordinance
and Resolution re Cable TV Programming.
CONSIDERATION. This agenda item was introduced by City Manager Glaves. City
OF. REQUEST FOR Attorney Stein then addressed the Council advising that it
PASSAGE Of would be his recommendation that the Council refer the matter to
ORDINANCE AND the Attorney Generalfor an opinion as to_ the Legality_ of .the
RESOLUTION RE proposed Ordinance.
CABLE TV
PROGRAMMING The following persons spoke on behalf of the request for
passage of the proposed ordinance and resolution re Cable
TV Programing:
1) Brenton Bleier, Attorney-at-law, 1764 LeBec Court, Lodi
2) La Don Bader, 1808 Reisling Drive, Lodi
3) Dr. Wayne Kildall, Center of Hope, 307 W. Lockeford St.,
Lodi
4) Mr. Hoffman, 805 Pinot Noir Drive, Lodi
5) John Von Kuhlmann, 729 Howard St., Lodi
6) Jim Baum, 1420 Edgewood Drive, Lodi
7) Kevin Finn, 6244 Greenback Lane, Citrus Heights, California
8) Clint Hollworth, Lodi
9) Nancy Bleier, 1764 LeBec Court, Lodi
10) Marshall Hunt, 724 S. Church St., Lodi
11) Patsy Jackson, 1615 Scarborough, Lodi
12) Connie Simfenderfer, 1238 S. Sunset Drive, Lodi
13) Ross Schmiedt, 1231 S. Church Street, Lodi
14) Clarence Hartley, 838 S. Mills Avenue, Lodi
The following persons spoke in opposition of the request
for passage of a proposed Ordinance and Resolution re Cable
TV Programming:
t) Deanna Enright, Manager, Lodi Cable TV, 1521 South
Stockton Street, Lodi
2) Don Garrison, 1825 S. Church Street, Lodi
3) Leonard Lachendro, 531 Virginia Avenue, Lodi
4) Cathy Nightengale, 588 N. Loma Drive, Lodi
5) Phil Polenske, 1443 Holly Drive, Lodi
6) Nancy Midler, 791 E. Armstrong Rd., Lodi
7) Victor Goehring, Attorney-at-law, 125 N. Pleasant
Avenue, Lodi
8) Nancy Dembek, 218 Rainier Drive, Lodi
There being no other persons wishing to speak on the subject
the public portion of the hearing was closed.
A lengthy discussion followed.
-4-
Continued January 19, 1983
On motion of Mayor Reid, Olson second, Council by the
following vote directed City Attorney Stein to seek a
State Attorney General's opinion as to the legality of
the proposedOrdinance prohibiting the showing of sexually
explicit cabiecast programming to minors without parental
presence or permission
Ayes:
Council
Members
- Olson, Pinkerton, and Reid
Noes:
Council
Members
- Snider
Absent:
Council
Members
- Murphy
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14
CITY COUNCIL
FRED M. REID. Mayor
ROBERT G. MURPHY.
Mayor Pro Tempore
EVELYN M. OLSON
JAMES W. PINKERTON. Jr.
JOHN R. (Randy) SNIDER
6 44
CITY OF LOD I
CITY HAIL. 221 WEST PINE STREET
POST OFFICE BOX 320
LODI. CALIFORNIA 95241
(209)334-5634
January 20, 1983
Mr. Jack R. Winkler
Chief Opinion Unit
State of California
Office of the Attorney General
555 Capitol Mall, Suite 350
Sacramento, California 95814
HENRY A. GLAVES, Jr.
City Manager
ALICE M REIMCHE
City Clerk
RONALD M. STEIN
City Attorney
Re: Draft Ordinance Regarding Cable Television
Viewing by Minors
Dear Mr. Winkler:
Attached hereto is a copy of a draft ordinance relative to
the above -referenced subject which a citizen brought to the
Lodi City Council and asked Council to adopt.
The Council has taken the position that prior to any
consideration of the ordinance, they would ask your office,
through my office as City Attorney, for an opinion as to the
legality of the attached draft ordinance.
The two questions which I would request your opinion on are:
(1) Whether there has been preemption by the State through
Penal Code Sections 313 et seq. which prohibit the
distribution of harmful material to minors and
(2) Assuming that there is no preemption, whether the draft
ordinance is violative of the First Amendment, or if there
are other Constitutional problems with the ordinance
therefore making the ordinance invalid.
For your information, I am attaching hereto a copy of two
memos which were based on said ordinance - one by my. office
and the second, by counsel for the Lodi Cable Television
Company.
I would appreciate your opinion at your earliest
convenience. Thank you.
Sincerely yours,
RON LD M. STEIN
City Attorney
RMS:vc
Attachments
M E M O R A N D U M
DATE January S, 1983 _
TO: Lodi Cable TV
FRQt: Jacobs, Sills & Cohlentz
RE: Proposed Lodi Ordinance/Regulation of
Program Content and Viewers
On January 19th the Lodi City Council will consider an
ordinance• which is designed to prohibit the showing to minors
of "sex programming" as therein defined through the use of
cable television facilities without the express written/Iec-ast
sent
or presence of the minor's parent. While limited to cA
programming, the proposed Ordinance imposes strict liability on
any person violating its proscription.
The following constitutes our analysis of the substan-
tial
ubstan-tial legal impediments to the enforceability of the proposed
Ordinance, should it be adopted by the Lodi City Council.
Summary:
There are no less than six different theories under
which the proposed Ordinance would be found defective. First,
the Ordinance will be deemed preempted by pervasive state regu-
lation pertaining to the exposure of obscene materials to
46
minors. Second, the proposed Ordinance restricts materials
which are not obscene within the meaning of the First Amend -
hent. Third, tt.e proposed Ordinance violates the right of
privacy to read, view and enjoy whateverone-pleases in his or
her own home. Fourth, it violates the parent's liberty inter-
ests in rearing their children without governmental interven-
tion. Fifth, the proposed Ordinance lacks the essential ele-
ment of scienter. Finally, it violates equal protection
because it is both underinclusive and overbroad.
Discussion:
I. State Preemption
The draft Ordinance is preempted by state legisla-
tion. Under Article XI, Section 7 of. the California Constitu-
tion, "A county or city may make and enforce within its limits
all local, police, sanitary, and other ordinances and regula-
tions not ,in conflict with general laws." See Bishop v. City
of San Jose, 1 C.3d 561, 61-62, 81 Cal.Rptr. 465, 460 P.2d 137
i1969i A.municipal law not within the home rule purview of
protection of Article XI, Section 5 of California Constitution,
as would be the case here, "cannot be given effect to the ex-
tent that it conflicts with general laws either directly or by
entering a field which general laws are intended to occupy to
the exclusion of municipal regulation." Birkenfeld v. C'ity.of,
2.
r 6
40
Berkeley, 17 C.3d.;129, 141, 130 Ca1.Rpt. 455, 550 P.2d 1001
(1975) .
A local ordinance will be preempted by state law if:
(1) it attempts to legislate in an area preempted by state law;
(2) duplicates existing state law; or (3) contradicts existing
state law. Lancaster v. Municipal Court (1972) 5 C.3d 805,
807-08.
Here, the draft Ordinance is squarely in conflict with
California Penal Code Section 3130 It. seq., which prohibits
the distribution of "harmful matter" to minors. As therein
defined, . "harmful matter" means:
matter, taken as a whole, the predominant
appeal of' 'which to the average person,
applying contemporary standards, is to
prurient interest, i.e. , a shameful or
morbid interest in nudity, sex, .or _excre-
tion; and is matter whichtaken as a whole
goes substantially beyond customary limits
of candor in`description'"or representation
of such . matters; and is matter which taken
as a' whole 'is utterly without redeeming
social importance for. minors .
The statutes goes on, however, to expressly exempt parental
action by providing:
A.Nothing in this chapter shall,,pro-
hibit any parent or guardian from distribut-
ing any_ harmful matter to his child or wa:rd:, .
or permitting` his��child or ward' to attend an
exhibition of any harmful matter if, the
child or ward' is accompanied by him.
B. Nothing in this chapter shall pro-
hibit any person from exhibiting any harmful
matter to any of the following:
3.
0 6%,
1. A minor who. is accompanied by
his parent or guardian.
2. A minor who is accompanied by
an adult who represents himself to he
the parent or guardian of the minor and
whoa the person, by the exercise of
reasonable care, does not have reason
to know is not the parent or guardian
of the minor. Cal. Penal Code Section
313.2.
Carl v.. City of Los Angeles (1976) 61 Ca1.App.2d 265, 269-270,
lag Ca1.Rptr. 365, held that Section 313.1 of the Penal Code
preempts the field of offering and selling "harmful matter" to
minors. One portion of the Los Angeles ordinance there in
question, prohibited any person to, sell, offer to sell or keep
for sale any harmful matter as defined by Section 313 of the
Penal Code in any newsrack on a public sidewalk unless the sale
was made in the presence of an adult person authorized to pre-
vent the purchase of such matter to a minor. The court found
that section of the ordinance conflicted with Section 313.1 by.
"criminalizing'conduct connected with the distribution of harm-
ful matter that is not prohibited by Section 313.1." 61 Cal.
App.3d at 270. For instance, the L.A. ordinance extendedthe
prohibition to persons who merely kept or maintained for - sal e
any harmful- matter, whereas Section 313.1 prohibits only:the
distribution or offer to distribute such material. Further-
more Section 313.1 contains scienter requirements not con-
rained in the L.A. ordinance. The court thus concluded that
"subsection 7 imposes additional requirements on distributors -
4.
.
V
0
of harmful matter not found in Section 313.1 and [was]
therefore:'; void.11 Id. at 271.
Carl seems dispositive. Like the L.A. ordinance in
-Carl, the draft Lodi Ordinance criminalizes conduct which is
expressly exempt from criminal liability under Section 313.2 of
the Penal Code and extends criminal liability beyond that
covered by §313.1. The draft Ordinance imposes liability wbere
the parent "distributes" or allows his child to view "sex pro-
gramming " in his own home when. he is not present or has not
given written permission. Such conduct is exempt from punish-
ment under Penal Code Section 313.2(a), whose literal` language
allows the parent to distribute "any harmful matter "to his
child," without condition or qualification.
A case subsequent to Carl held that the State has not
preempted the field of regulating material that is not obscene
as to minors or adults. Gluck v. County of.Las Xe1it (1979)
93 Cal .App.3d 121, 155 Cal .apt r. 4350 The court ln' Gluck held
that reasonable regulation of the time, place or wanner of.
speech, such as those restricting the display in newsracks
y;
-placed on the public streets of certain nudity, is not pre-
empted by state regulation. The regulation of the use of
a.
streets and sidewalks has been a traditional function of local
J
government. Although Gluck contained broad language hostile
towards the pre-emption doctrine ("if there is a s ignif ican-t
local interest to be served which may differ from one local ity
S.
H
e
to another.then:the presumption favors the validity of the
local ,ordinance against an attack of state pre-emption." `ter t
117'7
Cal.App. d at 1�), American Booksellers Association, Inc. v.
Superior Court* limited Gluck to the regulation of the use of
public streets and sidewalks. The draft Lodi Ordinance is not
such '& regulation, and thus is not immune from state pre-
empti.on.**
II. Violation of the First Amendment
While obscene material is unprotected by the First
Amendment, the Supreme Court in Miller v. California*** estab-
fished a stringent. definitional test which must be overcome be-
fore First Amendment protections may be found inapplicable.
Miller defined obscenity as:
Works which, taken as a whole,.appeal
to the prurient interests in sex, which
protray sexual conduct in a:. t-stenly .of ten-
sive way, and which, taken as a whole, do
not have serious literary, artistic, poli-
tical, or scientific value.
J1_
*
NCa,I.App.3d 197, 201-02 (1982).
**
-Cf. Music Plus four Inc. v. garnet (1980) 114
Cal.App.3d 1133,-123-125, Ca . ptF 419 (city ordinance
governing the di:Qplay of drug paraphernalia in stores not
preempted since the ordinance is a time, place and manner regu-
lation).
*** 413 U.S. 150 93 S.Ct. 2706, 37 L.Ed.2d 419 (1973).
Ap
r .
The draft Ordinance defines "sex programming" quite
broadly to .include notonly sexual acts but also "female or male
genitalia,. the anus of a male or female or that portion of the
female breasts which includes the nipple." It is certainly con- _
ceivable that programming which contains the mere exposure of a
female breast may not "taken as a whole appeal to the prurient
interest" or "lack serious literary, artistic, political or
scientific value." The proposed Ordinance would appear to re-
strict viewing of many "F" rated movies which would not be ob-
scene within the meaning of the First Amendment. Conceivably it
could also restrict the viewing of scientific prograaming which t
involve exposure of the hunan anatomy. In short, "sex program-
ming" as regulated by the proposed Ordinance, would undoubtedly
include non -obscene programming protected by the First Amendment.
At first blush, the proposed Ordinance's restrictions on
viewing of "sex programming" to only juveniles under the, age. of
18 years appears to tack the Supreme Court's solicitous attitude
towards the protection of children from exposure to pornography*
* See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93
S.Ct. 26287 L.Ed.2d 446, where the court noted:
We have often pointedly recognized the
high importance of the state interest`:in
regulating the exposure of obscene
materials to Juveniles and unconsenting
[Footnote Continued on Next Page]
7.
However, as explained below, the draft Ordinance far ex-
ceeds the permissible regulation in this area. Simply put it
fails to pass constitutional muster even under the more generous
standards Applicable to minors.
• 1
The Supreme Court's view of the special considerations
attendant exposure of minors to obscene material was most re—
cently reflected in New York v. Ferber, 50 U.S.L.W. 5077 (June
29, 1982), Where the court upheld the constitutionality of a New
York criminal statute which prohibits persons from knowingly pro-
moting sexual performances by children under the age of 16 by
distributing material which depicts such performances. The court
relied heavily upon the state's interests in "safeguarding the
physical and psychological well-being of a minor". See Globe
Newspapers v. Superior Court, 50 U.S.L.W. 4759 (June 23, 1982) .
The. court noted that it had sustained legislation aimed at pro-
tecting the physical and emotional well-being of youth even. -.when'
those laws touch upon constitutionally protected rights. See
Prince v. Massachusetts, 321 U.S. 153, 168 (1944) . The ;fact that
the use of children as subjects of pornographic materials., was
[Continued From Preceeding Page]
adults. . . .; see also FCC v. Pacifica
Foundation, 438 U.S. 726,98 S. t. 30269 57
. Edl; a' M3 (the court ueholding the con-
stitutionality of the FCC s restriction of
broadcasts which contain material that was
indecent but not obscene).
8.
• e
7
found by the legislature to be harmful to the psychological, emo-
tional, and mental health of the child, justi-fied applilcation of
a different standard of obscenity.
The seminal case in the area of the state's right to
regulate the exposure of obscene materials to minors is Ginsberg
v. New York, 390 U.S. 629, gR S.Ct. 1274, 20 L.Ed.2d 195 (1968) .
There, the Supreme Court upheld the constitutionality of a
criminal obscenity statute which prohibited the sale to minors of
material defined to be obscene on the basis of its appeal to
minors, even though such material would not be obscene to Adults.
The defendant was charged with selling to a 16 year old boy, two
"girlie" magazines which contained pictures depicting female
nudity. The statute in question prohibited the sale to minors
of, inter alis, materials which contain nudity and which is
"harmful- to minors." Nudity was defined as the showing of the
human male or female genitals,.pubic area or buttock with less
than a full opaque covering, or the showing of a female breast
with less than a fully opaque covering of any portion thereof
below the top of the nipple. "Harmful to minors" was
defined as material which:
* See also Miller, supra, 413 U.S. at 27; Stanle_�__v_,
Geors►ia,4 .�.557, S65, L.Ed.2d 542, 89 S:Zt.-�C'r3 U.S.
v�elde' 1, 402 U.S. 351s 357, 91 S.Ct. 1400, 28 L -Ed.2d 813•,—�
.S. V. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674, 37 L.Ed.2d'
313.
9.
0
(1) Predominantly appeals to the pru-
rient, shamful or morbid interests of
minors,.and
(2) Is patently offensive to prevail-
ing standards in to adult community as a .
whole with respect to what is suitable
materials for minors, ani
(3) Is utterly without redeeming
social importance for minors.
The Supreme Court held the magazines involved were not obscene
for adults. But the court rejected defendant's argument that
the scope of the First Amendment cannot be made to depend upon
whether the person is an adult or minor. Noting that the power
of the state. to control the conduct of children reaches beyond
the scope of its authority over adults, the court found two in-
terests justifying the limitations of the statute. First, the
court recognized the parent's claim to authority in their own:.
householdto direct the rearing of their children. The court
found: the -:`legislation supported that parental claim and was de-
signed- to . aid;..in the: ,discharge : of: that responsibility. The
court noted, The .prohibition against sales to minors does not
bar parents ._who- so desire. from purchasing the magazines for.
theiir_ children." Second, the: state. had : an independent: interest.
in. the well -being -9f its, youth, wed: to- see. ;that: they' are,, "safe
guarded,,, frow:abuses" which might prevent.. their :!'growth -into.::
free oand< independent well-developed. men- and,_citizens..:!' ;;R: The
court found that the state legislature could have rationally
10.
i
concluded that the exposure to the materials proscribed consti-
tutes such an "abuse". V
4
Ginsberg points up the failing in the draft Ordinance. f
The critical distinction between the draft Ordinance and that
involved in Ginsberg is that the draft Ordinance does not re-
quire the essential elements of the Supreme Court's definition
of obscenity as adopted with respect to minors, i.e., the draft
Ordinance does not require that: 1) the proscribed material
predominantly appeal to the prurient interest of minors; 2) is
patently offensive to the prevailing standards in the adult
community as a whole with respect to what is suitable material
for minors; and 3) is without redeeming social importance for
minors. Whilc Ginsberg did not explicitly state whether the
inclusion of those elements in the statute at 'issue were essen-
tial to its constitutionality, the Supreme Court has `more
recently held there are constitutional limits to what the
legislature can do in this field.
In Erznoznik v. City of Jacksonville, 422 U.S. 2053,
216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975),.,-a city ordinance
prohibited the showing of films containing nudity by a drive -in -
movie theatre when its screen is visible from a public * street
or place. It was conceded that the ordinance swept far beyond
the permissible restraints on obscenity under Miler, and
applied to films that were protected by the First Amendment.
The c _irt then rejected the argument that the ordinance was a
11.
reasonable means of protecting minors. from visual nudity.
Admitting that a state or municipality can adopt more stringent
controls on communicative materials _available to youth than .on
- --
those availale to adults, the court stated that minors are
nevertheless entitled to "a significant measure of First
.. Amendment protection, and only in relativelynarrow and well-
defined circumstances may government bar a public dissemination
of protected materials to them." 422 U.S. at 212-213. The
court found the restriction was broader than permissible:
The ordinance is not directed against
3
r
sexually explicit nudity, nor is it other-
4wise-limited. Rather, it sweepingly forbids
display of all films containing any un-
covered buttocksor breasts, irrespective of
context or pervasiveness. Thus it would bar
a , firm containing a picture of a baby's
buttock's, the nude body of a war victim, or
scenes from -a culture in which'nudity'is
indigenous. The. ordinance also might prohi-
bit newsreels scenes- of the opening of = an art
exhibit as well as shots of bathers on a
beach. Clearly all nudity cannot :be- deemed
f
obscene even as to minors. See. Ginsberg v.
New York, su ra. Nor cane sucF'"a�.roa3-re=
sir cin be justified by any other` govern-
mental interest Pertaining to minors.
Speech- that is neither obscene as to youths
pa
nor subject to, other legitimate pro=
scription cannot be suppressed solely to
protect`= the young from ideas or. images that
a legislative body thinks unsuitable for
the**.,* In. most circumstances,-` the'values x. ..
protected by the First Amendment are`no.less
applicable when goverment seeks to.control
the flow of information to minors. (Cita-
tions and footnotes omitted.) 422°US. at.
213-214.
The court noted that to be obscene as to minors, material must
be "in some significant way, erotic." Id. at footnote 10.
--Thus,-the'dra-ft Ordinance does not contain the essen-
tial elements of obscenity. What was objectionble about the
ordinance in Erznoznick is objectionable here. The draft
Ordinance only specifies certain types of depictions which are _
deemed offensive. It fails to require that these depictions
Appeal to the prurieht inter; sts of children or is without
serious literary, artistic, political, or scientific value to
children'. In short, it does require the material be "in some
significant' way, erotic." Therefore; the Ordinance as proposed
is oveibroad in restricting materials which are protected by
the First Amendment.
The California courts have stricken other statutes -on
ne
similar §rounds. In Carl sa ra 61 Cal. A 2d at 273. one-
section
section of 'the L-A'ordinance prohibited theexposure to the "'`
public view' of -'any photograph or drawing displaying"'nud ty.
'Me court `stated,' "Nudity alone is not enough to make material
legally obscene, id. at 273; uotin "-Jenkins v :'G eo-Eia
MS '153, 161; The' ordinance 'contained' no qualifications: the '
depicted .nudity need not Have had`" sexual arousal; "grat#.fLid at J, 0n
}" -
M1
or' affront' as its' purpose or affect. Hence the court Or
that"subsection overbroad and unconstitutional.' ` "`See also }
American Booksellers Association, supra, 192 'Cal. 3d'107 '0
... - _.
4,
Y,I'�.r._
13.;:
0
III. Violation of Minor's Right to Privacy
The proposed Ordinance violates the privacy rights of
individuals to do as they please in their own hones. The
seminal case in this area is Stanley v. Georgia, 394
U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243. In that case,
authorities were searching defendant's home pursuant to a
search warrant issued in respect to alleged bookmaking acti-
vities. In the course of the search the officers discovered
films which they considered obscene and seized them. Defendant
was charged with "knowingly having possession of . . . obscene
matter" in violation of Georgia law. The court held that the
obscenity statute, insofar as it punished mere private posses-
sion of obscene matter, violated the First Amendment.
The court distinguished prior cases, as dealing with
the power of the state and federal governments to prohibit or
regulate certain public actions taken or intended to be taken
with respect to obscene matter. None had dealt with mere
private possession.
In its analysis, the court first discussed the consti-
tutional right to receive information and ideas, regardless:. of
their social worth. The court then identified the additional
dimension of the right to be free from unwanted governmental
intrusions into one's privacy. In this regard the defendant
asserted the right to read or observe what he pleases - the
14.
40
right to satisfy his intellectual and emotional needs in the
privacy of his own home. The court held:
"Whatever may be the justifications
- for other -statutes -reg
ulatnb obscenity, we
do not think they reach into the privacy of
one's own home. If the first Amendment
means anything it means that a state has no
business telling a man, sitting alone in
his own house, what books he may read or
what films he may watch. Our whole consti-
tutional heritage rebels at the thought of
giving government power to control men's
minds." 394 U.S. at 565.
The progeny of Stanley have reaffirmed its holding as
applicable to essentially privacy issue,. In U.S. v. Twelve
200 Foot Reels, 413 U.S. 123, 126, 93 S.Ct. 2665, 37 L.F.d.2d
500 (1973), the court stated:
Stanley depended, not on any First
Amendment right to purchase or possess ob-
scene materials, but on the right to
privacy in the home.
Similarly, TJnited States v. Reidel, supra, in uphold-
ing the constitutionality of a federal statute which prohibited
the knowing use of :nails for the delivery of. obscene matter,
the .court characterized Stanley as focusing on the freedom of
mind and thought and on the privacy of one's home.* Stanley'.
* 402 U.S. at 355-356. In U.S. v. Thirty -Seven Photo-
graphs, 402 U.S. 363A 3763, 28 L.Ed. , t. , w ere
the -court held that whatever the scope of the right to receive
obscenity adumbrated in Stanley, that right,doe's not 'ex-
tend to one who is seeking to distribute obscene -
materials to the public, nor does it extend to one seeking to
import obscene materials from abroad-, whether for priva-te use
or public distribution."
15.
9
while limited to establishing the constitutional right of
privacy in one's own home to possess obscene materials, has
nonetheless been consistently reaffirmed as to that essential
right of privacy.
The key issue is whether 3rtnley would extend to the
privacy rights of minors in the context of the draft Ordinance._
That minors enjoy numerous constitutional rights is
well settled.
Students, for instance, have a First Amendment right
not to be compelled �o salute the flag. West Virginia v.
Barnette, 319 U.S. 624, 637 (1943). Students also have free
speech rights to wear black arm bands in class as a protest
against the government's policy in Viet Nam.
Tinker v. Des
Moines School District, 393 U.S. 503, 507 (1969). The Supreme
Court recently, held in Board of c,ducation v. Pico, SO U.S.L.W.
4831,'4836 (June 25, 1982), that students have First Amendment
protection against a school board's supression.of ideas by re-
moving books from a school library for partisan or political
reasons (plurality opinion of Justices Brennan, Marshall,
Stevens and concurring opinion of. Justice Blackman). Children
also enjoy certain First Amendment rights. See School District z
of Amiagton Township v Schemnp, 374 U.S. 203, 224, 82 SCt.
1560, 10 L.Ed.2d 844 (1963) (school prayer violates establish-
ment clause); Engel v. Vitale, 370 U.S.'421, 82 S.Ct. 1261, 8
L.Ed.2d 601 (1962) (same). In addition, minors enjoy many
16.
constitutional procedural due -process rights. See In re
Winschin, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);
In re Gault, 387 U.S. 11, 87 S.Ct. 1428, 18 L.Fd.2d 527 (1967).
To he sure, the court has limited the privacy and
First Amendnent rights of minors under certain circumstances.
For example, in Prince v. Commonwealth of 'Massachusetts, 321
U.S. 1589 64 S.Ct. 4381 88 L.Ed. 645 (1944), the court upheld
the constitutionality of child labor laws which prohibited the
sale of newspapers in any street or public place by a boy under
12 or a girl under 18, as applied to Jehova's Witnesses.
However, a minor's privacy right has been established
in nu.-merous circumstances. In 21anned Parenthood of Missouri
v. Danforth, 428 U.S. 52, 74-75, 96 S.Ct. 2831, 49 L.Ed.2d 788,
the court stated:
Constitutional rights do not mature and
come into being magically only when one ob-
tains.the state -defined age of majority.
Minors; as well as adults, are protected by
the constitution and possess constitutional
rights: (Citations omitted.) The court,
indeed, however, .long has recognized -than:
the state has' somewhat -broader authority to
regulate the act v tti s of children than;of
"adults.(Emphasi `added.)
Similarly, in Bellotti v. Baird, 443 U.S. 6620 99
S.Ct. 3035, 61 L.Ed.2d 797 (1979), a plurality of the court
held that 3 state may require a pregnant minor to obtain.
parental consent to an abortion but only if it also -provides an
17.
4
a. a
4
0
alternative procedure whereby authorization for the abortion
can be obtained if the parents do not consent.*
While the court has given special consideration and
weight to the reasonable judgment of the state in protecting
the health and welfare of children, it is not a limitless
deference. The court in Bellotti. has recognized that there are
limits in the state's enactment of laws affecting minors on the
basis of their lesser capacity for informed choice, and sug-
gested that the state "may not arbitrarily deprive them of
their freedom of action altogether." Bellotti, supra, 443 U.S.
at 637, footnote 15.
t.
The Ordinance in question clearly exceeds permissible
regulation.
Furthermore, there are two additional points that must
be evaluated in reference to the considerations pertaining to
state regulation of minors articulated in Bellotti. First, the
draft Ordinance is overbroad in that it applies to all children .,
under the age of 18, regardless of their "vulnerability" and
maturity and ability to make an informed choice for themselves.
Bellotti held that A minor has the right to obtain an abortion;
* It is noteworthy that a strong dissent of four justices
opined that minors had a constitutional right to receive. an
abortion without first having to obtain the' consent.of'Ehird
parties be it parents or a judge. Furthermore those ;justices
were critical of the burden un minors' individual Interests � .
in avoidi' disclosure of personal matters and the right: to
cco�g ,
exercise the abortion decision without public scrutiny.
1R.
notwithstanding the contrary views of her parents if she is k.
mature enough, and well enough informed to make the decision.
Certainly, the abortion decision is a :ouch more serious and
consequential decision than a minor's decision to observe the
programming at issue. It is noteworthy that the Supreme Court
in H.L. v. 'Matheson* (upholding s 17tah parental notification
statute), took great pains to narrow its holding so as to apply
to girls who, inter Alia, have mane no showing as to their
maturity. Furthermore, the court in Frznoznick strongly sug—
gested a minor's right to observe obscene materials must depend
upon his or her relative maturity. Specifically, inmeasuring
the scope of a minor's First Amendment rights, the court sug—
gested that -the capacity for individual choice is an important
consideration:
In assessing whether- a minor has the requi -
site capacity for individual choice the age
of the minor is a significant factor. 422
U.S. at 213, footnote 11
As in Aellotti and Erznoznik, there are mature minors
whore First Amendment rights and/or privacy rights that would
be unduly restricted by the draft Ordinance. Furthermore, the
Ordinance does not require mere parental consultation as in
Bellotti, but gives parents complete veto power. Cf. Planned
Parentho,A of Missouri v. Danforth, supra.
450 U.S. 398 (1981).
19.
Second, as discussed infra at Part IV, while the
Ordinance appears at first blush to be supportive of parental
role in child rearing, as a practical natter it adds little to
their authority and instead imposes potential criminal lia-
bility for the failure to rear their children in a prescribed
fashion.
Perhaps the most important facet of the draft Ordin-
ance is the fact that the activity in question takes place in
the privacy of a home, and not in a public accommodation or
area. Therefore, whatever constitutional right a minor may
have in viewing such programming, the strength and scope of
that right is maximized under these circumstances. This is not
a case where the strong interests of the state, distinct from
an. asserted interest in regulating the morality and protecting
the perceived welfare of a child, can provide substantial
justification for the challenged state action. For instance;,;.
the $ long -recognized" power of .,local school:. boards in p erc, s-
ing "broad discretion in the management ,if school affairs" is
not involved. Cf. Board of Education v. Pico, supra,,SO:.
U.S.L.W. at 4834... Nor is this the case which involves state
regulation over public activities or matters of employment.
Prince, supra, 321 U.S. at 168,. the court observed;
The state's authority over children's acti-
vities is broader than over like actions: of
adults. This is particularly true of public
activities and in matters of employ-
ment. . . . Among evils most appropriate
20.
In
for [ state 'regulation] are the tripling ef-
fects of child employment, more especially
in public places, and the possible harms
arising from other activities subject to all
of the diverse influences of the street.
The court's concern of the dangers of the "diverse influence of
the street" has little applicability to the instant case. In
contrast to the state's concedely broad powers over the regula-
tion of public conduct, the unique sanctity of the home is
involved here. At bottom, it will appear that the teaching of
Stanley v. Georgia apply to adults and children alike. When
the Atate attempts to regulate the conduct of children where
privacy expectations are the greatest, and where there are no
collateral state interests involved, such as in Pico, surra,
the state's naked assertion of itsap reins patriae power stands
on tenuous grounds.
In sum, the privacy rights of minors in their own
home, the fact that the draft Ordinance restricts the privacy
and First Amendment rights of minors regardless of their
maturity and ability to make a reasoned choice,, and the fact
that there is no demonstrable connection between the ends and
means of the Ordinance render it violative of minor's constitu-
tional right of privacy.
JV. Parents' Liberty Interest in Rearing Their Children
The fourth defect is that the draft Ordinance inter -
Peres with the parents' constitutional right of liberty in
21.
0
0
rearing their children without unjustifiable governmental
interference. This liberty interest was first established in
Myer, v. Nebraska, 262 _U.S. 390, _391-4010 43 S.Ct_. 625-, 6.7 L. -Ed.
1042 (1923). The court held that the due process clause of the
Fourteenth Amendment guaranteed the right of the individual to
"establish a home and bring up children." The court held
unconstitutional a Nebraska statute which outlawed the teaching
of any language other than English in any school.. The
` defendant school teacher's right to teach.and "the right of
parents to engage hila to so instruct their children" were held
f.
to be within the liberty of the FourteenthAmendment. In Pierce
y. Society of Sisters, 263 U.S. 510, 535, 45 S.Ct. 571, 69
L.Ed. 1070 `(1925) , the court struck down a statute which tom-
pelled the attendance of children between the ages of S and' 16
in a public school. The statute prohibited attendance in
private schools, 'and thus conflicted ' with the- right o£' parents
to choose schools for their children. The court held.
The child is not the 'me re�creature of
the state; those Who nuture hist and direct
his dentinY have the right . coupled'. with'` the°
high .duty, to recognize and prepare him fo;r
i
add tional`obl alio s.
i n
S
The court held the statute "unreasonably interfere[d] with the
liberty of parents and guardians to direct the upbringing and
education of children under their control."
In Prince v. Massachusetts, supra, the Supreme Court
recognized that "it is cardinal with us that the custody care
22.
and nuture of the child reside first in the parents, whose
primary function and free include the preparation for obliga-
tions the state can neither supply nor hinder."
of course, the parents' liberty interests in directing
the rearing of their children are not unlimited. The state as
ap rens patriae may restrict the parental control by requiring
school attendance, regulating or prohibiting the child's labor,
or requiring compulsory vaccination. Prince upheld a statute
which prohibited sale of newspapers and magazines in any str^et
or public area by children, even though it conflicted with the
guardian's religious desire to have the child distribute reli-
pious materials.*
Mere there is a conflict between the desires of the
parents and conduct required by the state, there is a clear
governmental intrusion upon the parents' liberty interests.
Thus, a clearer constitutional challenge could have been made
had the Ordinance strictly prohibited the viewing by minors of
"sex programming" notwithstanding parental desire- to grant
consent. In Ginsberg, supra, 390 U.S. at 639, tr--� court noted
that "tbe prohibition against sales to minors does not bar
* Cf. Wisconsin v. Moder, 406 U.S. 205, 233-34, 92 S.Ct.
1526, 32 L:ed• court holds unconstitutional a
state statute requiring education to age 16 in some private or
public school which, as Applied to Amish children, interfered
with the exercise of their religious beliefs and interests of
the parents in directing the upbringing of their children) .
23.
parents who so desire from purchasing the magazines for their
children." That observation seems to imply conversely that had
parents been barred from purchasing magazines for their chil-
dren,
hil-
dren, the statute may have been unconstitutional.
Moreover, any contention that the Ordinance is support-
ive of parental control is illusory. In actuality, it adds
nothing to the parents' ability to control their children.
Instead, it penalizes parents for failing to rear their
children in a - .anner prescribed by the Ordinance. The statute
dictates the formalization of parental consent. Parents, for
some reason, may desire the relationship with or communication
to their children be so formalized. The procedure prescribed
by the draft Ordinance may be embarassing to either or both
parent and child. Furthermore, since the consent is formally
memoralized, there is a danger that third parties willdiscover
the fact that the parent explicitly gave his or her child-con-
sent;
hild.con-sent; it is conceivable that a parent might desire to permit ,.
his or her child to observe "sex programming" b,it would prefer
others not know of that desire. It.might be asserted;. that..
there is a particularly important privacy interest.in communi-
cations between parent and child. Such communications ought to
remain confidential and not subject to governmental regulation
or intrusion. To be sure communications between parents and
24.
U
child are not privileged within the meaning of the law of evi-
dence,* but nothing seems more deserving of privacy than com-
munications between a parent and child in their own home.
Thus, more than the mere liberty ir.' -rests of a parent to
direct the upbringing of his child is at stake. The draft
Ordinance subjects intimate conversations to intrusive govern-
mental regulation. The statute "would allow the state 'to in-
quire into, prove, and punish,' the exercise of this parental
responsibility." Carey, supra, 431 U.S. at 708.
Moreover, the parents' liberty claim is coupled with
other interests; viz. the child's First Amendment right to view
the programming and the privacy interests of both parents and
child in- familial communications within their own:home,' dis-
cussed helow. If the combined effects of these claims is-
E
Furthermore, the. fact that the exercise of parents of
their liberty right to direct the upbringing of their children
relates primarily to conduct within their home is of great sig-
nificance. None of the aforementioned Supreme Court cases have
dealt with similar circumstances. All pertain to child's
conduct, as desired by the parent, outside the home. Where the
liberty interest of the parent in rearing their children per-
tains to conduct or activities within the home, a special
privacy interest, one which eminates from Stanley v. Georgia,
obtains. The allusion made by Juntice Powell in Carey to the
state's inquiry into, proof, and punishment of the exercise of.
the parental responsibility of distributing contraceptives to
their children, presumably in the privacy of their own home,
supports the argument. So does the court's observation in
Ginsberg, supra, that the statute in question did not prohibit
parents from purchasing nude magazines for their children. It
seems noteworthy that the court in,Ginsberg.was aware of the
dangers that obscene material might fall into the,hands of..
children as a result of public distribution of cbscene
materials, but made no mention of the same. thing happening
where an adult privately possesses obscene materials. in hie
home. Stanley, supra, 394 U.S. At 567. Thus, Stanley may be
read as implicitly holding the privacy interests that obtains
in one's own home precludes governmental regulation of the
right of parents to obscenity to ,minors within the home.
26.
El
E
V. The Requirement of Scienter
The fifth obstacle is that the draft Ordinance does {
not require scienter, as mandated bySmithv. California,, 361 - -
U.S. 147, 80 S.Ct. 15, 4 L.Ed.2d 205 (1959). The court in
Smith struck down the California statute imposing strict lia-
bility for the possession for sale of obscene materials without
requiring the defendant's knowledge as to the contents of the
materials possessed. Since it was practicably impossible for a
bookstore owner to have 'Knowledge of the contents of all of ;lis
inventory, there was a danger that public access to materials
would be overly restricted through self -censorship compelled by _
the statute. The resulting 8 chillin effect upon the First
Amendment rendered the strict liability statute unconsti-
tutional.
The draft Ordinance does not require knowledge or
scienter. - If <a child choses to ' watch "sex. programming" An the
absence of his or her parent, and without the knowledge of his
or her parents, the parents could nonetheless be prosecuted.
Furthermore, as a factual matter, the Playboy Channel does not
broadcast .exclusively "sex programming." 'Interviews and other
programming which do not involve nudity are mixed with "sex
programming." Like radio broadcasting involved in Pacifica
Foundation, supra, 438 U.S. at 748, "prior warnings cannot com-
pletely protect the listener or viewer from unexpected program
27.
content." This fact increases the danger and unfairness -of
strict liability imposed upon the parents.
P In an attempt to avoid unwitting liability, parents
would have to terminate subscription to the Playboy Channel.
But, the overbroad effect of the statute which would result as
a practical matter, would intrude upon the First Amendment
right of children to observe materials not deemed obscene with
respect to children, as well as burden the unlimited privacy
right of adults to observe and view any materials in his own
home, as established in Stanley v. Gem. In sum, the same
"chilling effect" which infected the strict liability statute
in Smith, obtains in the instant case.*
VI. The Ordinance is Underinclusive or Overbroad
`ae draft Ordinance is underinclusive and overbroad.
Various aspects of overbreadth have already been discussed;. To
recapitulate, the chief aspects of the Ordinance'a overbreadth
is: (1) it regulates the viewing of "sex programmirg", much of
which may not be deemed.o')scene even. with respect I to minors; .
(2) it applies to minors who are mature and are capable of �mak-
ing an informed decision as to the propriety of viewing "sex
programming"; and (3) it may have a "chilling effect" upon the
* ?tote also that the statute contains no scienter re=
quirement with respect to the minor's actual ----e.
28.
rights of other viewe rs . As a result, not only is the Ordin-
ance, if enacted, subject to suit by an appropriate plaintiffE
(e.g. , a mature minor who does not which to obtain the express
written consent of his or her parent), but it might be attacked
on its face by anyone within the permissible purview of the
Ordinance. See Nowak, et al., Constitutional Law, pp.722-
726. A facial attack upon the statute as a whole on grounds of
overbreadth will be upheld where the "overbreadth of the
statute [is] not only real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep." Ferber,
supra, 50 U.S.L.W. at 50£4, quoting Broadrick, 413 U.S. 601,
615 (1973) . The requirement of substantial overbreadth is met
here. The number of mature minors, against whom the state's
ap rens patriae power is limited, is undoubtedly substantial.
So is the amount of "sex programming" which is not obscene with
respect to minors. See ►"iller, supra, 413 U.S. at 27. In
critizing Justice Brennan's argument that the supression of ob-
scene material is permissible only to avoid exposure to uncon-
senting adults and to juveniles, Justice Burger, speaking for
the court, states:
Nor does he indicate where in the constitu-
tion he finds the authority to distinguish
between a willing 'adult' one month past the
state age of majority and a willing
'juvenile' one month younger.
Thus, the Ordinance as drafted "reaches a substantial number of
impermissible applications." Ferber, supra. 50 U.S.L.W. at
29.
5084. Furthermore, in vier of the specificity of the statute
it is not "readily subject to a narrowing construction by the
state courts, and its deterent affect on legitimate expression
is both real and substantial." v-rznoznik, supra, 422 U.S. at
216.
The draft Ordinance is also underinclusive inasmuch as
it does not prohibit or safeguard the exposure without parental
consent to minors of other forms of obscene materials. For fn -
stance, nothing is said about the display of sex newspapers in
public newspaper stands, nor the display of nudity outside of
movie theatres. Furthermore, the statute does not require ex-
press written parental consent before a minor can view "girlie"
or even obscene materials other than television programming
within the home. Cf. American Booksellers Association, supra,
192 Ca1.App.3d 197 (the ordinance was underinclusive and not
rationally tailored to accomplish the asserted purpose because
it permitted the unrestricted sale to minors of the very
materials sought to be restricted). Although the court has
frequently upheld underinclusive classifications onthe> theory
that a legislature may deal With only one part of a problem
without addressing all of'it, the "presumption of'statutory
validity, however, has less force when a classification turns
on the subject matter of expression." Frznoznick, supra, 422
U.S. at 215. Under these circumstances, the government must
30.
VII. Application of California Constitution
The preceeding discussion has been based almost exclu-
sively upon federal constitutional law. Consideration should,
also be given to the free speech and privacy rights contained
31.
0 10
inclusive than the First Amendment", Wilson v. Superior Court
(1975) 13 C.3d 6521, 6588 119 Cal.Rptr. 468, 532 P.2d 116, it
appears that the constitutionality of pornography legislation
is not determined by standards different from those that apply
under the Federal Constitution. See Bloom v. Municipal Court
(1976) 16 C.3d 71, 81-82, 127 Cal. 2ptr. 317, 545 P.2d 229. It
is noteworthy that Bloom rejected the argument that Stanley v.
Georgia protects the right to sell and distribute obscene
materials outside the home. It is apparent from American Book-
sellers Association, supra, and Carl, supra. that no differing
state constitutional analysis applies when the constitution-
ality of a statute regulating the exposure of obscenity to
minors is at issue. The definition of "harmful matter" under
Penal Code Section 313 is narrow (the material "taken as a
whole (must be] utterly without redeeming social importance for
minors."), and its constitutionality has not been challenged.
See American booksellers Association, supra, 129 Cal.App.3d at
291. Therefore, it would appear that the guarantees, of free
speech under the California Constitution adds little to the
federal doctrines.
B. Privacy.
Article 1, Section 1 of the State Constitution
provides:
All people are by nature free and inde-
pendent and have certain inalienable rights.
Among these are enjoying and defending life
32.
. ',,
and liberty, acquiring, possessing and pro-
tecting property, and pursuing and obtaining
safety, happiness and privacy.
Although the California courts have not addressed the question
whether the State Constitution affords minors an unlimited
privacy right to possess or view "harmful" materials in their
homes, the right of privacy generally is more expansive under
the State Constitution than under the Federal Constitution.
See Committee to Def.?nd Reproductive Rights v. Myers (1981) 29
C.3d 2529, 172, Ca1.Rptr. 866, 625 P.2d 779 (legislation
restricting the circumstances under which public Funds were
authorized to pay for abortions for Medi -Cal recipients held
unconstitutional). Compare Parrish v. Civil.Se rvice Commis-
sion, 66 Cal.2d 260 (government practice of conditioning the
receipt of welfare benefits upon recipient's waiver of this
constitutional right of privacy in his horse held unconsti-
tutional) with Wyman v. James, 400 U.S. 309 (1971) (similar
government policy upheld) . Furthermore, the California courts
have placed special emphasis upon the right of privacy in the
home. See Annenberg v. Southern Cal. Dist. Council of Laborers
(1974) 38 Cal.App.3d 637, 645, 113 Cal.Rptr. 519, in which the
court observed:
. . ve have the unquestioned right of the
householder or the homeowner to privacy, to
A sanctuary reasonably secure from outside
intrusion, and to a sheltered place for the
family. As our society desparately attempts
to drown itself in overpopulation, this
33.
right of privacy, if not becoming more im-
portant, is, at least, receiving better
recognition. It has been judicially de-
clared -that this right of privacy is well
within the penumbra of the Bill of
Rights. .- .
As our society and population problems
become more accute, we are becoming increas-
ingly more aware of the importance of this
right to be free from outside intrusion
either by the state or by other individuals.
See
also
People v. Dumas,
9 Ca1.3d 871, 842,
109 Cal.Rptr.
304,
512
P.2d
1208 ("the courts
have implicitly
recognized that
man
requires some sancturary in which his freedom to escape the
intrusions of society is all but absolute."). Thus, whatever
the privacy rights enjoyed by minors under the Federal Consri-
tution, it is at least, if not more, expansive under the Cali-
fornia Constitution. A persuasive argument could be made that- -
the California Constitution affords adults and minors an ab-
solute privacy right in their home to view obscene matters.
34.
RECEIVED
t982 OIC 10 p% 0.28
CITY CLERK
CITY OF--LDDI
MEMORANDUM
To: Marc Yates, Police Chief
From: Ron Stein, City Attorney
Re: Draft Ordinance and Resolution re Cable
TV Programming
Date: December 9, 1982
Marc, enclosed are copies of the above -referenced,:
drafts presented to Council at the December 8, 1982
meeting by Brent Bleier, Attorney at Law.
After reading them, you will probably understand why
I would say we would probably have to add 36,000
policQ officers to enforce the ordinance if it were
to go into effect.
On a more serious note, I would appreciate your
comments and thoughts on these drafts. Thank you. .
KO-NALD M. STEIN -
City Attorney
TEIN CityAttorney
RMS:vc
attachments
0
DRAFT
DRAFT ORDINANCE PROHIBITING SHOWING OF
SEXUALLY EXPLICIT CABLECAST PROGRAMMING
TO MINORS WITHOUT PARENTAL PRESENCE OR
PERMISSION
WHEREAS, certain television signal providers, hereinafter
"Providers", are providing signals by means other than the use
of the public airwaves including but not limited to cablecast-
ing and microwave broadcasting= and
WHEREAS, these Providers are offering programming to the
general public which is inimical to the. mental health and welfare
°of children under tht age of 18 years; and
WHEREAS, the City Council finds that many parents within
the City of Lodi wish to prohibit their own children under the
age of 18 years from viewing such unhealthy and inappropriate
programming.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LODI
DOES HEREBY ORDAIN, as follows: g
1. It shall be unlawful for any person to display, cause
to be displayed, or allow to be displayed upon a television
receiver under his responsibility, ownership or control certain
sexually explicit adult programming, hereinafter *sex,programminq"
as defined below, within the City of Lodi to any child under.
the age of 18 years unless the parent of said child shall be
physically present during such showing or unless the parent,::
of said child shall have given said person the parent's prior
written permission for said child to view the sex programming.
Said written permission shall be within the physical custody°
of the person. displaying,, causing to display or allowing,..to be
displayed such sex programming at the time of the display and
shall be available for presentation to any law enforcement
officer or official upon request.
2. "Sex programming" as the phrase is used within this
ordinance shall be defined as any graphic or pictorial depiction
of sexual intercourse or copulation between males and females,
a
males and males, females and females, males and animals, or
females and animals, female or male genitalia, the anus of a
male or female or that portion of the female breast which, in-
cludes the nipple, masturbation or simulated masturbation,
oral copulation of the mouth of any person to the genitalia of
which includes the nipple, or artificial or simulated sexual
organs or;Oenitalia.
3. This ordinance shall have no application to any show-
ing or display of sex programming as defined herein which shall
occur as part of an educational program of any institution
under the -supervision of the State Superintendent of Public
Instruction.
4. Violation of this ordinance shall be punishable by
imprisonment in the County Jail for a period not to exceed one
(1) year ora fine of not to exceed One Thousand Dollars
($1,000) for each such showing or. display.
S.' It is the express intent of the City Council in adopt-
ing
dopting this ordinance to prohibit only the viewing of sex program-
ming as defined herein by children under the age of 18 without
the',presence or permission of their parents. This ordinance
shall not be ``deemed or construe& to affect or restrict in any
way'whatsoever the right of adults 'over the age of 18'years to
view such sex programming.
ATTEST:
-2-
RESOLUTION NO.
DRAFT RESOLUTION RELATING TO THE PROVISION
OF SO-CALLED ADULT ENTERTAINMENT CHANNELS
BY LODI CABLE TELEVISION
WHEREAS, this Council has learned of the plans of Lodi
Cable Television to provide "the Playboy Channel" as a premium
service to its subscribers in Lodi; and
WHEREAS, "the Playboy Channel" is typified by explicit
pictorial representation, display and discussion of male and
female frontal nudity, male and female genitalia, deviant
sexual behavior and practices, copulation, fornication and
marital infidelity; and
WHEREAS, the Council finds that such presentations with-
in the homes of the people of the City of Lodi will have a
marked and deleterious effect upon the quality of life of all
of the citizens of Lodi and particularly its minor children;
and
WHEREAS, the Council believes that Lodi Cable Television
may not have fully considered the adverse societal impact of
this.type of presentation.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF LODI that:
1. Yt is the sense of the Council that the provision.of
explicit,, so-called adult entertainment programming, such,
"the Playboy Channel" is an unfortunate degraduation of.the.
cultural life of the City of Lodi and its citizens and is to
be deplored.
2. It is the sense of the Council that Lodi Cable Tele
vision is to be encouraged to reconsider its decision to cable -
cast such programming to the homes of Lodi.
3. It is the sense of the Council that Lodi Cable Tele-
vision, if it should persist with such programming, should
assure the cit ze--s of the City of Lodi, its subscribers and
this Council clearly and unequivocally in writing that it will
not display such programming on a "preview" or "promotional"
basis to its regular subscribers.
CONFIDENTIAL
HENORANDUM .
To: Honorable Mayor Fred Reid
From: City Attorney
Re: Cable TV Programming
Date: January 14, 1983
0),
I would ask that you review and consider some additional
thoughts I have in addition to those previously furnished
relative to the above -referenced subject.
(1) Either the Mayor or myself should consider limiting
debate only to the issue of whether or not the City can
regulate in order to protect minors. The reason for
this thought is because the ordinance which was
submitted by Mr. Bleier deals only with prohibiting,, the
_._ showing of - sexually explicit programming _to minora
without parental presence or permission. It .does not .
deal with the question as to whether or not we should
have the Playboy Channel or whether or not we should
limit the viewing by adults of the Playboy Channel.
(2) Using the California Environmental Quality Act as an
example, where someone is attempting to limit a project
because of environmental concerns, there must be'
substantial evidence on the record, of said conceicns.
(environmental impacts). For example, if a developer
wanted to put a development in, it would not be enough
for a person to object on the grounds of a noise impact.
without having substantial evidence on the record .of
what that noise impact would be. In the same way, it
could be argued that the City cannot limit the First
Amendment rights of its citizens without substantial
evidence on the record of the harm which is caused by
the viewing of bare breasts.
(3) At present, there are Federal laws dealing with
obscene material being sent through the mails. In
order to prosecute under those statutes, the individual
who receives obscene material through the mail and
objects to receiving said obscene material, must send a
letter to the firm sending said material, asking that
no further material be sent. If the firm then again
sends the material, then that firm can be prosecuted.
Page Two
If the evil that we are trying to get at is an
e
individual allowing another person's child to view
sexual programming, then the parents whose child might
;=
-- -be subject ---to viewing -that objected -to material, -should
:---
be required under this ordinance to give his child a
note to carry with him at all times, advising people:-"
r:
that the child is not allowed to watch said:
programming; and, if that person after seeing said note
allows the child to view the programming - or, -in the
€:
alternative, the parent would have to give notice: to
the other party of their objection (as an example,' it
would be similar to a trespassing statute wherein you
mustgive notice that someone cannot be on'. your
property, and if they persist in remaining on your
property after having been given notice) - .then .that
person could be prosecuted under the terms of the
ordinance.
z
RONALD M. STEIN
City Attorney
RMS:vc
PRIVILEGED AND CONFIDENTIAL
MEMORANDUM
To: Honorable Mayor Fred Reid -
From: Ronald M. Stein, City Attorney
Re: Regulation of Cable Broadcast,Programming to E
Minors Without Parental Presence or Permission. §.
Date: January 13, 1983
There are a number of points and thought- provoking comments t.
that I wanted to stress regarding the attached Memorandu. }
The foremost tm
thought of the Memo which I will stress is the
preemption issue.
PREEMPTION ISSUE
The fact is that the State has already regulated. in this
area and therefore any ordinance the City would adopt would
be invalid. Mr. Bleier would.probably argue that:,
1. It has not been preempted and -at that point, -you, could
now suggest that you could request: an Attorney, .General's
opinion. Mr. Bleier said the -problem with an, Attorney
General's Opinion is that it would take, -3.- 4 -months -to get
same and at that time, public sentiment would be lost=
2. That we have a new Attorney General; and
3. It would require briefing on my part and the Attorney
General could fail to come down in favor of same, saying
that it was preempted;
4. That an Attorney General's Opinion is - just that - an
opinion.
ATTORNEY GENERAL'S OPINION
The response that you might have to that, Fred, is' that it
would certainly be more inexpensive 'and less time-consuming
to. get an Attorney General's Opinion prior to considering
the passage of any ordinance, rather than preparing an
ordinance and spending 3 - 5 years in court defending..the
ordinance and possibly having to pay the other sides's
attorney's fees.
It --could be argued that the Attorney General's Opinion does
have some weight with the courts and that the Attorney
General would have more time to research the issue.
Mayor Fre eid
Page Two
NEW LEGISLATION
Fred, you might suggest to Mr. Bleier that if he feels that
the problem of cable television is a pervasive one, that the
problem may be greater than that in Lodi. You might suggest
the possibility of legislation which would specifically
permit the cities to regulate cable television. Of course,
Fred, the problem with this suggestion is that I doubt that
the Legislature would consider such a pervasive kind of
enabling legislation. The new legislation argument could,
however, be an answer to Mr. Bleier's and my argument
regarding preemption. The example that you could use to 14r.
Bleier is the issue dealing with cruising, wherein the
courts held that there was a premption by the Vehicle Code
and the Legislature then passed legislation which would
permit the cities to regulate cruising.
UNENFORCEABILITY
Fred, ,I spoke with baro Yates, and he feels that the
ordinance as presently written is quite unenforceable. Mr.
Bleier might argue that there are many laws on the books
which are unenforceable and that the City should pass this
ordinance just for the principle of same. Your response to
that could be - (1) why add another unenforceable statute
to the books?; and (2) that even though it is unenforceable,
it does not man that someone could not attack the ordinance
as having a chilling effect on First Amendment rights
regardless of its unenforceability and, if said ordinance
were attacked, the City would not have the defense that it
was unenforceable, therefore, we do not have to defend it.
Fred, you might also mention to Mr. Bleier that there is the
possibility that. someone could attack the ordinance as
unconstitutional and be awarded attorney's fees.
LA MIRADA
Mr. Bleier could mention also that he has spoken with
someone in La Mirada and was told that they banned the.
Playboy Channel by ordinance. I have spoken with the City
Manager in La Mirada and I was told that in fact, the issue
of the Playboy Channel never- even came to the City Council.
La Mirada has select TV and to quote the City Manager, "At
11 p.m., the clothes come off". It would be my suggestion
that between now and the Wednesday Council meeting, that you
call the City Manager in La Mirada and speak to him so that
if Mr. Bleier mentions La Mirada, you could say you have
spoken with the City Manager down there. (His name is Gary
R. Sloan, telephone (213) 943-0131, extension 35.)
If the evil that Mr. Bleier is attempting to get at is the
evil to r..inor children, then in lieu of this ordinance,
could not you suggest that if he does not want his children
watching cable television in your home, he need Lftrely call
Mayor Fre�eid
Page Thre
t
you and ask you not to allow his children to watch said
channel when they are visiting. If he does not trust you, E
then he can keep his children home. `r
i
Fred, the bestexample- of the aforementioned is a- situation --
dealing with barking dogs. Oftentimes, I will get a call
-from someone concerning their neighbor's barking dogs. My.;.
first response is to ask the party if they have called their
neighbor regarding the problem, and quite often, the answer`
is "no"; and when I call the neighbor or ask the complaining
party to call the neighbor, this normally does resolve the
problem.
LOCKBOX
The proposal by the Lodi Cable Television to sell lockboxes
for $16.00 and buy back same, seems to be a reasonable
response to Mr. Bleier. Unfortunately, Mr. Bleier has told
me that he wants to require any person who has cable
television to have the lockbox regardless of whether they
want to take the lockbox, or not. Again, he claims this is
for the protection of minors. Fred, this is similar to our
requiring the liquor companies to supply liquor cabinets,
with each bottle of alcohol sold. I would argue that I have
alcohol in my home; my child does not drink alcohol, nor do.
my child's friends drink alcohol. I don't need Government
requiring me to have a liquo abinet in my home. '
RONNED H. STE N k'
CITY ATTORNEY
RMS:vc
attachment
HARMFUL
MATTER Sec. 313
of the abuts,
- this chapter, and which is involved in the
by either the prosecution or by the defense. Leg.H.
,cn mentbc�„ch
basic maximum and additional days
19G9 ch. 925, 1970 ch. 1072.
q humansar-d
d 360 days in the county jail, or by
Ret;; W. Cat. Sum.. "Constitutional 1_3w• §196.
t it give, t
l rg.l{ lgrl
nc and imprisonment. 1! such person
,it been convicted of any offense in this
§§312.5. If Any Parts of This Chapter Are Held
043; cffcctir!:.,..+ra
tiolationof Section 313.-1, a viola-
--Invalid. _Such _Invalidity Shall _Not _Affect Other
t.; 7'c-
311.2 or 311.5, except subdivision
Parts.
311.2, is punishable as a felony.
If any phrase, clause, sentence, section or provi-
er-
1 ,;-, 1+crcun who violates Section 311.4 is
sign of this chapter or application thereof to any
Or solicits the=
, ; b% finc of not more than two thousand
person or circumstance is held invalid, such inva-
.ming or other
, c�.txlt)) or by imprisonment in the count}
lidity shall not affect any other phrase. clause•
manner pros
r -,,t more than vne year, or by both such
sentence, section, provision or application of this
bition of snag
; , ,1 ,uth imprisonment. If such person has
chapter, which can be given effect without the
to be obscene;;
>h convicted of a violation of former
invalid phrase, clause, sentence, section, provision
961 ch. 2147.
; { I .? u; Section 31 1.4, he is punishable by
or application sold to this end the provisions of this
7rtcnt in the state prison.
chapter are declared to be severable. Leg.H. 1969
Conduct. ):
t rs4n who violates Section 311.1 is
%:ry f'c
ch. 249.
.,`..,b,e l> fin4of not more than one thousand
CHAPTER 7.6
Resor partici:
1. ;•,,S1.000) v by imprisonment in the county
HARMFUL MATTER
s, prestore s-
before
; r.ot more than six months, or by both such
Definitions. $313. `
an Ira
least one peel
, ;
1-d mpri<onment. For a second and subse
- .::;:n-.c he shall be punished by a fine of not
Distribution to minor a misdemeanor. §313.1.
Exception of parents from act. 0313.2.
>r in any place,
-�;!.:n two thousand dollars (52,000), or by
Defense in prosecution for violation. §313.3.
,cc open to the;
. ,..n-.ncni in the county jail for not more than
Punishment. X3113.4.
(her or not an'
or b% both such fine and imprisonment.
Severability of provisions. §313.5.
or not attend-
l-cr,on has been twice convicted of a viola
X313. Definitions.
,entation of ar
;:,t, chapter, a violation of Section 311.7 is
As used in this chapter:
i> guilty of >t-,
K
147, 1970 ch.,
,, ,� ; ..
... � : a felony. Lcg.H. 1961 ch. 2147,
.t
~.- ' , 13S. 1960 ch. 249, 1976 ch. 1139, opera-
(a) "Ilarmful matter” means matter, taken as
• t 1.!s 1. 1977, 1977 ch. 1061, effective Septcm-
a whole, the predominant appeal of which to the
average person, applyin& contemporary standards,
Obscene
is the prurient interest, i.e., a shameful or morbid
Other
De%truction of Obscene Matter.
interest to nudity, sex, or excretion, and is patently
offensive to the prevailing standards in the adult
a condition to',
1 ~ ' the conviction of the accused, the court
community as a whole with respect to what is suit-
telivery for re.';
-"cn the conviction becomes final, order any
able material for minors, and is utterly without
,nodical, pu}..
''":- •'r advertisement, in respect whereof the
redeeming social importance for minors.
,tires that the
`„L ;.i `t•tnde convicted, and which remains in
(1) When it appears from the nature of the
'bscenc matter ,
{
'^K~`t''n or under the control of the district
Matter or the circumstances of its dissemina-
v a franchist,4
irn ses inyl
7
''t any law enforcement a,ency, to be
and the court may cause to be de-
tion, distribution or exhibition that it is designed
defined deviant
J
reason of thtt
ctt !nt such material in its possession or
for clearly sexual groups, the
predominant appeal of the matter shall be
enc matter. orl
+ i1, 0;ntrUl. Leg.H. 1961 ch. 2147.
judged with reference to its intended recipient
_cne matter, iss
` °Y' 1312 appears in chapter 8 below.
group.
-t1 ch. 2147.
f,
tfL1- Not Required to Introduce Expert
(2) in prosecutions under this chapter, where
Purposes. - •
'A+tae % /e%linum-, Concerning Obscene or
Itumfu)
circumstances of production, presentation, sale,
dissemination, distribution, or indicate
rcution for i
( haracter of Matter—Evidence Which
Is tdmisible.
publicity
that matter is being commercially exploited b
I charged wai°
t - or cduca-
t a,� ptu,ccution for a violation of the provi-
the defendant for the sake of its prurient appea ,
such evidence -is probative with respect to the
.47.
j ` thu chapter or rf Chapter 7.6 (comment-
ti • th Sc.tion
nature of the matter and can justify the conclu-
1 Y
3 13), neither the prosecution nor
'�ctc^.ter shalt be required to introduce expert
q
sion that the matter is utterly without redeem-
ing social importance for minors.
.:tion 311? Of
::cion 311.?. is
testimony concerning the obscene or
., -fit .haraeter of the matter or leve conduct
(b) "Matter" means any book, magazine,
one thousa
`� the subject of any such prosecution. Any
newspaper. or other printed or written material or
I c51 for each
^ :c-�t Nhich tends to establish contemporary
any picture, drawing, photograph, motion picture,
+ithin>he p roe
f� �'+ tt standards of appeal to prurient inter-
or other p'-torial representation or any statin or
,yolYed in the
*.+f customary limits fcandor n the descrip- \ other ffure, or any recording, transcription. or
+isand dol{a
; ``r %1're entation of nudity, sex or excretion,
Y mechanical. chemical, or electrical reproduction
t he county, ja
'Ch bears upon he question of redeemingnc
or any other articles, equipment, machines, or ma-
•
t^+ yrons
."e
tissiblewhen
tcrials.
.
i hin the p
'� Fluence Code. be dmoffered
(c) "Person" means any individual, partner-
Sec. 313.1
PENAL CODE
ship, firm, association, corporation, or other legal
entity.
(d) "Distribute" means to transfer Possession
of, whether with or without consideration.
violation of this chapter that the act charged r
committed in aid of legitimate scientific or ed%
tional purposes. Leg.H. 1969 ch. 248.
1313.4, Punishment.
(e) Knowingly means being aware of the Every person who violates Section 313.1 is,
character of the matter. ishable by fine of not more than two thou
(f) "Exhibit" means to show. dollars (S2,000) or by imprisonment in the co
(g) "Minor" means any naturalperson under jail for not more than one year, or by both
18 years of age. Ltg.H. 1969 ch. 248, 936, 1379. fine and imprisonment. If such person has i
4313. 1982 Deletes. 1. and is matter which taken as a previously com icted of a violation of Section 3
rgoes Wtt�candor r or section Chapter r(commencing
daci orrrepresenation o such matters; and is nuSection 311) of ToPatofhscod4
which taken as a whole is punishable by imprisonment in the state pr
1313.1. Distribution to Minor a Misdemeanor. Ltg.H. 1969 ch: 248, 1976 ch. 1139. oper.
(a) Every person who, with knowledge that a July 1, 1977.
person is a minor, -r who fails to exercise reason-
able care in ascertaining the true age of a minor,
knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit any
harmful matter to the minor is guilty of a misdc-
meanor.
(b) Every person who misrepresents himself to
be the parent or guardian of a minor and thereby
causes the minor to be admitted to an exhibition
of any harmful matter is guilty of a misdemeanor.
(c) Any person who, within 500 meters of any
elementary schoole, junior high school, high school,
or public playground, or any part thereof, know-
ingly sells or offers to sell, in any coin- or slug -
operated vending machine or mechanically or
electronically controlled vending machine which is
located on a public sidewalk, any harmful matter
displaying to the public view photographs or picto-
ria representations of the commission of the fol-
lowing acts, is guilty of a misdemeanor: sodomy,
oral copulation, sexual intercourse, masturbation,
bestiality, or a photograph of an exposed penis in
an erect and turgid state. Leg.H. 1%9 cl,. 248,
1970 ch. 257, 1976 ch. 1121.
1313.2. Exception of Parents From Act.
(a) Nothing in this chapter shall prohibit any
parent or guardian from distributing any harmful
matter to his child or ward or permitting his child
or ward to attend an exhibition of any harmful
matter if the child or ward is accompanied by him.
(b) Nothing in this chapter shall prohibit any
person from exhibiting any harmful matter to any
of the following:
(1) A minor who is accompanied by his par-
ent or guardian.
(2) A minor who is accompanied by an adult
who represents himself to be the parent or
guardian of the minor and whom the person, by
the exercise of reasonable care. docs not have
reason to know is not the parent or guardian of
the minor. Leg.H. 1969 ch. 248, 1970 ch. 257.
1313.3. Defense in Prosecution for Violation.
It shall be a defense in any prosecution for a
5313.5. Severability of Provisions,
If any phrase, clause, sentence, section or pr
sion of this chapter or application thereof to
person or circumstance s held invalid, such i
lidity shall not affect any other phrase, cla
sentence, section, provision or application of.
chapter, which can be given effect wititout
invalid phrase, clause, sentence, section, prc+-i
or application and to this end the provisions of
chapter are declared to be severable. Leg.H.1
ch. 248.
CHAPTER 8
INDECENT EXPOSURE, OBSCENE4
EXHIBITIONS, AND BAWDY AND,,
OTHER DISORDERLY HOUSES
Indecent exposure. 1314.
Keeping or li.int in house of prostituti W 53!5.
k'.-rptng dlwderly or assipration house. 1316.
Pimping. yy>pIng or soliciting trona. g328.
Tos atal�lishnrrnts smug food and beserat�s reed
Is cit or county ordinaaces-Quimby-W'= 40
118. 4
Priority of city or cossrty ordinance. 4313.6.
13.11. Enacted 1872. Repealod 1961 ch. 214a
A new 1311 appears in ch. 7.3 above.
1312. Enacted 1872. Repealed 1961 ch. 2I4
A new 5312 appears in ch. 7.5 above.
$313. Enacted 1872. Repealed 1961 ch. 213
A new 1313 appears in ch. 7.6 above. ,.
1314. Enacted 1872. Repealed 1961 ch. 21�,.
A new 1314 follows.
1314. Indecent Exposure.
Every person who willfully and lewd!Y.
1. Exposes his person, or the private .
thereof, in any public place, or In any placewL�'
there are present other persons to be offended+'(
annoyed thereby; or, 111
2. Procures. counsels. or assists any person
expose himself or take part in any model _..
exhibition, or to make any other exhibition of
self to public view, or the view of any num
Nu:h as is offs:
C rcitt to vic;i
teat} of a misdcr,'
..;r. per•.on who s1013
„ sftrr having enttl
,,.•s :n St ction 635 of t`
,,,Ustt'd (Hsrtion of any C
wf� �. imprisonment in ti
,,,nt% iyit not exceeding
•• :h: . -ond and c
. -.'.cr .ubdivision 1 o
..n%iction under sub
rcvious convictiol'
r •on so convicted `
.�.tblc by imprisc
! •)t•I ch. 2147, l i
'477. 1982 ch. 11;
:A 1 482 Deletes. 1. of th
1 F ms PI do Pr...0
H Cit. Sum.. "Corutitt
c. Kerping or Living;
f-.tttutiun.
person who keep,
rc.oried to for t'
'cwdncss, or who t
cuiit}• of a misden
Wr keeping or res
route maybe ret
: of the character of
•
ch, it is kept or use
len inhabiting or;
668.
' 1 n beeping Disorderli
c`crson who keeps!
a•c for the purpose S
-. or any house of pati
. comfort. or dec ei,
�rh.�ad is habitual
l s inn in a disocde
V'- - •.•ho lets any apartm
ii is to be used for
Prtr:itution. is gui.
1-472. 1949 ch. 100
1t' Enacted 1874. Rep
its Pimping, Capping i
pct cr. through invite
*"% Ikrson to visit a
4ces kept for the p
:"tion. is guilty of a to
'ton thereof, shall be;
t c�tceding six mond
: hundred dol. ^o
""� :nc and imprisonmcn
TO- THE CITY COUNCIL
FROM: THE CITY MANAGER'S OFFICE
PRIVILEGED AND CONFIDEtj^ AL
COUNCIL C011 MUNI .TION
DATE I NO.
January 11, 41.
SUBJECT: REGULATION OF CABLE BROADCAST PROGRAM14ING TO MINORS WITHOUT
PARENTAL PRESENCE On PER14ISSION
PRIVILEGED MID CONFIDENTIAL
I begin this. Council Communique with somewhat of a caveat.
It is to be remembered that when Brenton Bleier presented
this ordinance to the Council, he did say that it was a
draft ordinance. With this in mind, I have chosen not to
take the ordinance -apart - word for word, but rather give to
the Council somewhat of an overview of the question relating
to censorsiip, pornography, harmful materials, etc. as they
relate to cable television.
The First Amendment of the United States Constitution reads
as follows:
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; of abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for redress of grievances."
However, it is to be remembered that not all speech is
within the protection of the First Amendment. In Roth v.
The United States cited at 354 U. S. 476 (1957) it was..
stated as follows:
"...There are certain well-defined and narrowly
limited classes of speech, the prevention and
punishment of which have never been thought to
raise any Constitutional problem These include
the lewd and obscene... It has been we -observeil-
that such utterances are no essential art of an
exe2sit on of i eas and are o such s t social
value as a step to truth that any bAnefit that- ma
e derived from them is clearly outwei e , the
social interest in or er and mora it Emp as s
a e. lee o t
thaobscenity is not within
the area of constitutionally protected speech' or
press. Roth v. United States, 354 U.S. 476
(1957).*
In *1973, the United States Supreme Court in Miller v.
California at 413 U.S. 15, set forth the standard By wh
speech was determined to be within or without the protection
of the First Amendment. Specifically, it dealt with the
standard under which to evaluate the permissible regulation
of communication. The Miller court found that:
"The basic guidelines for the trier of fact must
be: "a) Whether 'the average person applying the
contemporary community standards' would find that
the work, taken as a whole, appeals to the
prurient interest ... (b) whether the work depicts
or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, -
political, or scientific value."
I am therefore not saying that we can have no regulation of
the cable television. In fact, at present there are a
number of agencies which do regulate the content of the
cable television.
FEDERAL
The r s of the Federal Communication Commission pertaining
to cable television systems, prohibit the transmission of
material that is obscene or indecent. (See the attached
copies of 47 C.F.A. Section 76.215, and a form letter by the
Cable Television Bureau of the FCC.) In addition, the
general "public interest" standards for granting and
retaining a broadcasting license (47 U.S.C. Sec. 307(a),
307(d) ) and the criminal penalty for the broadcast of
obscene, indecent or profane language (18 U.S..C. Sec. 1464)
provide authority for content -related regulation by the
Federal Government.
STATE
Under State law, specifically Penal Code Section 311 through
313.5, deals with obscene matter and prohibition against the
same. It is to be noted that Section 313 through 313.5
specifically deals with harmful matter which. might be
exhibited or distributed to a minor. The aforementioned
sections of the Penal Code become very significant in the
determination as to whether or not the City of Lodi;may pass
an ordinance relating to the exhibition of "harmful matter".
The reason why these sections are important is because of
the theory which is called "preemption". Basically, what we
are talking about.when we are discussing preemption•is the
theory that a.local ordinance is invalid if it is.an.attempt
to impose additional requirements in a field which is
preempted by State law. Specifically, where the Legislature
has seen fit to adopt a general scheme for the regulation of
a particular subject, the entire control over..whatever
phases of the subject are covered by State legislation,
ceases as far as local legislation is.concerned.
In determining whether the Legislature intended to occupy a
particular field to the exclusion of all local regulation,
we may look at a whole purpose and the scope of the
legislative schema. Whitneyv. Munic al Court 377 P.2d 80
(196.3) and Carl v. th$ City of Los Angeles 61 Cal.App.3d 265
(1976).
It is interesting to note, both Carl and Whitney, dealt
lith tt}e area Qf pornografphy or Tiarmful matter. Carl,
ealt with the placements o tyhe newspaper racks in the e►
-2-
's' ;,-..L.. ;r, ,. ft ..:., _. ... �. ::.,p v.,•,afi .._ .s,, sc�C ''-.a � Via.' �t!t 14 � p� �.r v. �r i�, <„ .�� .SY
of Los Angeles and specifically with sexually explicit
newspapers. In. Carl," the Second "District Court of Appeal
held that the city ordinance prohibiting the sale or keeping
or maintaining for sale, harmful matter in any unattended
newspaper rack in a public sidewalk, was preempted by
Section 331 through 313.5 of the California Penal Code and
therefore was unconstitutional.
What the Court stated at page 269 is very convincing:
"After defining 'matter' in section 313 to
encompass every conceivable mode of communication,
section 313.1, subdivision (a), then provides:
Every person who, with knowledge that a person is
a minor, or who fails to exercise reasonable care
in ascertaining the true age of a minor, knowingly
distributes, sends, causes to be sent, exhibits,
or offers to distribute or exhibit any harmful
matter to the minor is guilty of a misdemeanor.
'Distribution' is defined as any 'transfer (of)
possession of, whether with or without
consideration. (.=-,n. Code, Sec. 313, subd. (d).)
"The principles which govern our consideration of
subsection (7) were summarized by the Supreme
Court in Lancaster v. Municipal Court 6 Cal.3d
805, 807-908, 100 Ca .Rptr. 609, 610, 494 P.2d
681, 682, as follows:
'It is settled that a local municipal
ordinance is invalid if it attempts to impose
additi-anal requirements in a field that is
preempted by general law. (Citations.) Local
legislation in conflict with general law is
---id. Conflicts exist if the ordinance
duplicates (citations), contradicts
(citation), or enters an area fully occupied
by general law, either expressly or by
legislative implication (citations). If the
subject matter or field of the legislation
has been fully occupied by the state, there
is no room for supplementary or complementary
local legislation, even if the subject were
otherwise one properly characterized as a
'municipal affair.' (Citations)'
"We think it obvious that section 313.1 of the
Penal Code preempts the field of offering and
selling harmful matter to minors. The parallel
decisions holding that the statutes relating to
adult obscenity preempt the field leave no room
for argument on this point. (Whitney v. Municipal
Court, 58 Ca1.2d 907, 909-911, 27 Ca .R tr. 16,
377 P.2d 80; In re Moss, 58 Cal.2d 117, 119, 23
Cal.Rptr. 361, 373 P.2d 425; Spitcauer v. County
-3- 1El=
0
n
of Los Angeles, 227 Cal.App.2d 376, 379, 38
CaT Rptr. flier v. Municipal Court, 211__
Cal.App.2d 470, 472-471, 27 Ca1.Rptr. 02.
In light of the foregoing, it is the opinion of this City
Attorney that any ordinance relating to cable television and
the content of said cable television, would be at the
minimum very circumspect. It is to be noted that if the
evil that we are attempting to prohibit is "harmful matter",
then arguably the District Attorney's office would be the
person to whom a complaining party would necessarily go. It
is the District Attorney's office who would prosecute a
violation of Penal Code Sections 311 through 313.
If this Council were to adopt an ordinance dealing with the
content of the cable television communications, or, if this
Council were to attempt to regulate the viewing of the cable
television by minors by specifically putting the onus on
other parents (which appears to be the tenor of the
ordinance which Brenton Bleier brought before this Council)
this Council needs to be aware of a number of other problems
which the Council might face:
(1) Any ordinance which regulates First Amendment
rights, must require scienter. What I am referring to is an
intent or a knowledge on the part of the person exhibiting
or displaying the material or matter to the minor or in
fact, any adult (Smith v. California 361 U.S. 147 (1959).
In Smith, Los Angeles haa an ordinance which made it
unlaw=ut— for any person to have in his possession any
obscene or indecent writing.
The Court held that an ordinance imposing liability on a
bookseller for the sale of obscene books with no requirement
of proving knowledge, was unconstitutional. The Court held:
"There is no specific constitutional inhibition
against making the distributor of foods the
strictest censor of their merchandise, but the
constitutional guarantees of freedom of speech and
of the press stand in the way of imposing a
similar requirement on the bookseller. By
dispensing with any requirement of knowledge of
the books on the part of the seller, the ordinance
tends to impose a severe limitation on the
public's access to constitutionally protected
matter. For, if the bookseller is criminally
liable without knowledge of the contents, and the
ordinance fulfills its purpose, he will tend to
restrict the book he sells to those he has
inspected= and thus the state will have imposed
the restriction upon the distribution of
constitutionally protected as well as obscene
literature."
-4-
0
( See also Carl v. The City of Los Angeles 61 Cal.App.3d 65
352 U.S. 380 (1957) wherein the United State Supreme Court
• held that an ordinance making the distribution of a book
containing obscene, immoral, lewd, lascivious
language... tending to incite minors to violent or depraved
or immoral acts was unconstitutional as an unduly necessary
restriction of freedom of speech as protected by the due
process clause of the Fourteenth Amendment in that the
prohibited distribution of the book to the general public on
the basis of the undesirable passages without a sufficient
definite standard of guilt, is to quote the Supreme Court
"surely, this is to burn the house to roast the pig indeed".
If such an ordinance was left to stand, it would "reduce the
adult population of Michigan to reading only what is fit for
children." The Court held at 384:
"It thereby arbitrarily curtails one of those
liberties of the individual, now enshrined in the
dv4e process clause of the Fourteenth Amendment,
that history was attested as the indispensable
conditions for the maintenance and progress of a
free society.")
The next question which might be presented to the Council
would be:
(2) Why would the Council single out one form of
communication from all others for special treatment. it
poses questions of evenhandedness, equality before the law,
and equal protection.
The Fourteenth Amendment of the United States Constitution
provides, in part:
zs
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the state wherein they reside. No state shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States and of the state wherein they reside. No
state shall make or enforce any law which: shall
abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person within
its jurisdiction the equal protection of =t a Saws.
"U. S. CONST. amend. XIV.
"See, e.g., Anderson v. Celebrezze, 499 F. Supp. e
(D.C. Ohio 1980 ; Ven ermark v. Housing
Authority of City of York, 492 F. Supp. 359— D. C.
-5-
Pa. 1980);
117, 23 A.2
•
v. City of Westbrook, 138 Me.
.:t
"In Boothby the Maine Supreme Court stated that 'a
regulatory ordinance passed (by a city) pursuant
to a general legislative grant of power must be
reasonable and not arbitrary and operate uniformly
on all persons carrying on the same business under
the same conditions."
"23 A. 2d at 319."
3. The third issue that may be presented to the Council is
whether the ordinance is overbroad. It is to be remembered
as I stated previously in this Communique, that any
ordinance which would regulate communications must be
narrowly drawn and must in fact be tested by the three -prong
test of the Miller v. California decision. I start with the
premise that a state or municipality can adopt more
stringent controls or communicative materials available to
minors than those available to adults. Ginsberg v. New York
390 U.S. 629 (1968). However, in a recent Uupreme
Court case, Erznoznik v. Cit of Jacksonville 422 U. S. 205,
sets forth some standard to decide exactly what the city can
or cannot prohibit in the name of protection of its minors.
The Court stated after using the Ginsberg case as precedent
that the minors are entitled to a significant measure of
First .Amendment protection, citing Tinker v. Des Moines
School District 393 U.S. 503 (1969).:
only in relatively narrow and well- defined
circumstances may Government bar public
dissemination of protected materials to them."
In this particular case (Erznoznik V. Cit of
Jacksonville) the city had passed an ordinance which wou
prohibit the exhibiting of any movie in which the human male
or female bare buttocks, female bare breasts or human bare
public areas are shown. In order to uphold this ordinance,
the city argued that they were attempting to protect minors.
The U. S. Supreme Court held that the ordinance was not
directed against sexually explicit nudity, nor was it
otherwise limited:
"Rather, it sweepingly forbids display of all
films containing any uncovered buttocks or breast,
irrespective of context or pervasiveness. Thus it
would bar a film containing a picture of a baby's
buttocks, the nude body of a war victim, or scenes
from a culture in which nudity is indiginous. The
ordinance also might prohibit newsreel scenes of
the opening of an art exhibit as well as shots of
bathers on a beach. Clearly, all nudity cannot be
-6-
•
0
deemed obscene even as to minors. Nor can such a
broad restriction be justified by any other
governmental interest pertaining to minors.
Speech that is neither obscene as to youths nor
subject to some other legitimate proscription
cannot be suppressed solely to protect the young
from ideas or images that a legislative body
thinks unsuitable for them."
Again, this Council should be aware of the language in
Butler v. State of Michigan 352 U.S. 380 at page 414 in
which the Court in effect held that if we made an ordinance
so broad as to prohibit any exhibition of adult materials
for fear that a child might see the same, what we then would
do would be to "reduce the adult population to reading only
what was fit for children".
Two recent Federal District Court cases are very significant
in the area as it relates to the First Amendment rights and
specifically in the area as it relates to the regulation of
communication through cable television. In the first
instance we have a State statute in Utah which was declared
unconstitutional in Home Box Office Inc. et al. v.
Wilkinson 531 F. Supp. 87; and in the second instance we
have a local city ordinance which in effect, after the State
statute had been declared unconstitutional, adopted the
statute as an ordinance of the City and said ordinance was
also declared unconstitutional in Community Television of
Utah v. Roy City Nos. NC 82-0122J an NC 82-0171J D. Utah
Med August 26,-1982).
As an aside, it is interesting to note that the Communit
Television of Utah case was brought as a declaratory relief
action by t e cable television industry and the cable
television industry, upon obtaining relief is now going, to
sue in the Federal Court for attorney's fees under the Civil
Rights Act. I bring this to mind before discussing the case
only for the thought that if the Council were to adopt an
ordinance which was unenforceable but which would "show the
cable television people that we mean business", the Council
may very well end up in a lawsuit and be required to pay
attorney's fees if we were unsuccessful in defending the
ordinance (regardless of whether the ordinance is
enforceable or not).
In looking at the two cases cited, I chose to start with the
one that dealt with th,(, State statute which was declared
unconstitutional in Home Box Office Inc. v. Wilkinson 531
F. Supp.987 (1982) In the State of Utah, they had a statute
which is very similar to our Penal Code Section 311 dealing
with obscenity. However, the Legislature went a little
further and passed an ordinance which prescribed the
distribution of "indecent material" over a cable television
system. The Plaintiff's local and national cable television
distributors brought a declaratory relief action arguing
-7-
The Court goes on to state at 991, to wit:
"The reason for the special rule in First
Amendment cases is apparent: an overbroad statute
might serve to chill protected speech. First
Amendment interests are fragile interests, and a
person who contemplates protected activity might
be discouraged by the in terrorem effect of the
statute. (citations omitted) Indeed, such a
person might choose not to speak because of
uncertainty whether his claim of privilege would
prevail if challenged. The use of overbreadth
analysis reflects the conclusion that the possible
harm to society from allowing unprotected speech
to go unpunished is outweighed by the possibility
that protected speech will be muted."
As to the balancing which must be done, we look in the first
instance to the State's right to regulates and in the second
instance, the individual's First Amendment rights. The
Court at 991 continued:
"In accommodating these competing interests the
Court has held that a state statute should not be
deemed facially invalid unless it is not readily
subject to a narrowing construction by the state
courts (citations omitted) and its deterrent
effect on legitimate expression is both real and
substantial. (citations omitted)."
The analysis was held as follows:
"(1) ...delineate the constitutional bounds of
protected and unprotected expression;
"(2) ...determined whether a challenged statute
is facially overbroad; and
"(3) ...determine whether a limiting construction
may be placed on the challenged statute to cure
its constitutional infirmity."
The Court continues then its analysis by first discussing
regulation of government of public dissemination of written
or pictorial material. It first states that you must define
the definitional boundaries of obscene or non -obscene
material in light of Miller v. California 413 U.S. 15.
Quoting from Miller at 993 the Court states:
"This much has been categorically settled by the
Court, that obscene material is unprotected by the
-8-
..,7 c "� ).r _1� «. !;.''-., _...;? sf ._a - nl . is ._. �',?"t, i. it :T....
First :mandment...'The First and Fourteenth
Amendments have neverbeentreated- as absolutes- -
(footnote omitted)' Bread v. Alexandria, 341 U.S.
622 at 642, 71 S.Ct. 920 at 932, 95 L.Ed. 1233
(1951), and cases cited.... We acknowledge,
however, the inherent dangers of undertaking to
regulate any form of expression. State statutes
designed to regulate obscene materials must be
carefully limited.... As a result, we now confine
the permissible scope of such regulation to works
which depict or describe sexual conduct. That
conduct must be specifically defined by the
applicable state law, as written or
authoritativeauthoritativelx construed. A state offense must
also be limited to works whi.c ,_taken as a whole,
appeal to the prurient interest in sex which
portray sexual conduct in a patently offensive
wa and which, taken as a who e o not ave
serious . a.terar , artistic, 41itical, or
scienti i.c value. (Emphasis a e (citations an
footnote omitted
"Having thus defined the appropriate sphere of the
appropriate sphere of state regulation, the Court
went on to set forth the procedural standards
required to be followed in attempting such
regulation:
'The basic guidelines for the trier of fact
must be: (a) whether 'the average person,
applying contemporary community standards'
would find that the work, taken as a whole
appeals to the prurient interest, ...; (b)
whether the work depicts or describes, in a
patently offensive way, sexual conduct
specifically defined by the applicable state
law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic,
political, or scientific value. (citations
omitted)'
"The inquiry in obscenity cases is thus confined.
The Court left resolution of individualized
questions of fact and law to 'the jury system,
accompanied by the safeguards that judges, rules
of evidence, (the) presumption of innocence, and
other protective features provide...' (citations
omitted, again reasserting that 'no one will be
subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or
describe patently offensive 'hard core' sexual
conduct specifically defined by the regulating
state law, as written or construed."
The Court continues at 994:
-9-
"States may not go beyond Miller in prescribing
criminal penalties for distribu it on of sexually,
oriented materials. For better or worse, Miller
establishes the analytical boundary of permissible
state involvement in the decision by HBO and
others to offer, and the decision by subscribers
to receive, particular cable TV programming."
The Court then proceeds to look at the particular statute in
effect. The statute in effect makes the display of "nude or
partially denuded figures" encompassed wit.1-tin its reach.
The Court states at 996 that:
" it is well settled that nudity falls well
within the protection afforded by the First
Amendment, Jenkins v. Georgia, 418 U. S. 153
(citations omitted) even when viewed by minors.
Erznoznik v. City of Jacksonville, 422 U.S. 205
In a 'footnote on page 996, the Court states that the
applying to nude or partially denuded figures would in
effect apply the statute not only to cable television but
also regular television when such films as "The Godfather",
"Being There", "Coming Home", "Annie Hall" and "Coal Miner's
Daughter" were exhibited.
The Court goes on at page 997 to state:
"While 'commercial exposure and sale of obscene
materials to anyone, including consenting adults,
is subject to state regulation,' . (citations
omitted) transmission and delivery of nonobscene
TV programming is not, at least not through.'a
state criminal statute that runs so far afield of
the standards set forth in Miller V. California
supra. 'Precision of regu at on must the
touchstone in an area so closely touching our most
precious freedoms.' (citations omitted)
The Court continued at page 1001, to wit:
"To extend the reach of the criminal sanction
beyond the sphere described in Miller V.
California in hopes of effectively corralling t:
individua s into making only 'right', 'proper'. or
'decent' choices runs counter to the settled
constitutional rule that the States have no power
to control the moral content of a person's
thoughts. 'To some, this may be a noble purpose,
but it is wholly inconsistent with the philosophy
of the First Amendment' (citations omitted) As
the Supreme Court said in Rijn slime LInt' l Pictures
Corp. v. Regents 360 U.S. - 680 (1359) , Tt is
argument misconceives what it is that the
-10-
11
Constitution protects. Its guarantee is not
confined to the__expression of -ideas that are
conventional or shared by a majority... And in
the realm of ideas it protects expression which is
eloquent no less than that which is unconvincing.'
(citations omitted) 'Whatever the power of the
state to control public dissemination of ideas
inimical to the public morality, it cannot
constitutionally premise legislation on the
desirability a person's private thoughts,' Staff
v. Georgia 394 U.S. 557 (1969) or directing the
making of the best choices.'"
It should be noted that in Stanley v. Georgia the Court held
unconstitutional a statute which would have made a crime,
having pornographic movies in one's home.
What is important to note also from said case is that the
Judge states that in rethinking the 'legislation, that the
State statute on obscenity, similar to our State statute on
obscenity (Penal Code 311-313) would in fact adequately
resolve the problems of obscene or harmful material on the
cable television and that "they may also find that drafting
a special statute dealing with cable television amounts to a
redundant duplication of what is already on the books".
As I said previously, subsequent to the Home Box. Office,
Inc. v. Wilkinson case, the City of Roy adopted an oraTnance
which prohibited the cable television distributor from
sending signals which by the municipal ordinance definition,
may be deemed indecent. The cable television owners again
filed a declaratory relief action in Cable Television of
Utah, Inc. v. Roy City. Civil No. NC 82-:0122J in the United
States District Court for the District of Utah, Nvrthern
Division. The City argued that the power to restrict is
found in the power to improve morals, concern for children
who may hear and see things they, should not, its power to
control its streets, and its power to franchise and license.
When the Piainti€fs (the cable television owners) argued
that whatever the power the City may have, it is subject to
the limitations of the First Amendment= and that the
ordinance went beyond the boundaries set forth in Miller and
applied in the Home Box Office v. Wilkinson and tHus, the
ordinance was overbroad and facially defect ve.
The Court then applies the Miller standard. It states at
page 9 of the Memorandum Opinion:
"It-
"It is a national standard with a core of
uniformity which allows for a degree of
flexibility at a community level. It may be
uniformly applied to almost all forms of publicly
available communication. Books, magazines,
cassettes, periodicals, movies, and cable
-11-
� f
4
television are all treated essentially in the same
fashion regardless of numbers."
The City argued that because of the number of cable televi-
sion subscribers that there should be a different standard,
rather than the Miller standard. The Court held at page 10:
"It seems an odd criterion. If numbers trigger
application or not, the application of the Roy
Standard or of the Miller Standard would depend on
how many people suE—sc—ribe to cable television.
The irresistible analogy compels one to ask why
the more restrictive standard should not then
apply to large circulation newspapers, or
magazines, popular motion pictures and plays, 'top
ten' musical recordings or even best-selling
books. It seems an irony of striking strangeness
that the growing popularity of a work of art or
authorship would in some fashion enlarge the power
of.government to restrict or suppress its content.
"Nothing in Miller v. California even hints that
its carefully crafted standards are not to measure
the content of even the obscure, the neglected, or
the ignored. Even the F.C.C.'s power under
Pacifica to regulate broadcast radio does not rise
or faaMbased upon a given station's share of the
listening audience. ...
"Miller is not footed on numbers. To the
contrary. In applying the Miller pornographic
standard, one does not say something is dirty . or
patently offensive merely because more than fifty,
or a hundred, or a thousand, or a million persons
receive such communication.
"If a communication is dirty, patently offensive,
or to use defendant's suggested label and
standard, 'indecent', it seems to me that one
transmission and one receiver ought to be enough
to trigger application.
"There is no virtue in defendant's numbers
standards -- at .least in the context of this case.
"Why must a cor=unity tolerate? Because the first
amendment, as interpreted by the High Court of
this land, says so. The first amendment is the
barrier that precludes others from taking from us
what we cannot give away. There are areas of
personal freedom that are so important they are
inalienable. They belong not to the government
but to the people. The first amendment shields us
-12-
0 0)
from governmental excesses, no matter who occupies
aovernment offices.
The Court continues:
"...A monolithic social structure tolera.it of
nothing but approved ideas or points of view is
too much akin to the horror of the German Reich.
William Shirer, in his famous work, The Rise and
Fall of the Third Reich, tells of being almost
overwhelmed by the sameness of communication in
homogenized Germany and his need for the fresh air
of freedom.
"Diversity also is tolerated because the
self-appointed monitor of purified communication
may be in error. An American reviewer of the Walt
Whitman classic, Leaves of Grass, a book that
Ralph Waldo Emerson considered t e work of genius,
once wrote he would leave 'this gathering of much
to the laws which ... must have power to suppress
such obscenity.' Other works suggested for
similar suppression at various locations over the
years include: The New Testament, translated to
English by William Tyndale; King Lear, by William
Shakespeare; The Call of the Wi.1� d, by Jack London;
and The Grapes of Wrath, y Join Steinbeck. Even
the Mickey Mouse Comic Strip by Walt Disney has
not been immune from suppression."
In short, it is my recommendation that thti City Council not
undertake at this time, an ordinance prescribing cable
television. If there are those who would suggest that the
material on cable television is in fact as ascribed by the
Penal Code Section and they feel that there is some
enforcement necessary, the Penal Code provides for such
enforcement.
I attach for your information a Lakewood, California
ordinance which was put into effect prior to the awarding of
a cable franchise which provided for a requirement in the
first instance for the cable television owners to provide a
lockbox at no cost to the citizens; and in the second
instance, provided that prior to the showing of any material
which would be considered X -Rated under the movie rating,
would be required to make an announcement of the requirement
of parental discretion.
Respectfully submitted,
1
RONALD M. STEIN
City Attorney
RMS:vc
attachments
7
A
Section 75.215 of t`:c Ca--=1oa1oa'3 Csblu ;elavtaina Mlas prohibits the
preaentatioa of ot.,acana and/or ind*ccat progracs by cable talavisica
o,arstorts andaged in cablecauting on a local origination c'aazncl. ra.-
Co=is*ion'ss Rules to not and caaaot prohibit the presentations of
programs which are neralr otrensive or olijcctlDaablu. Accardinaly,
unlass a p ro-ra-: to clearly sliovn to ba ;'�tccaa or indecent. it is
entitlad to protection ua-dar the rirst A:sear.aent and its preaeatation
cannot ba restricted by the Con-.ijsion unear Via Co=.csicatioas Ut of
1934, as r:4endtl, or 'he Unite.- :•tatas Coastitutixi.
Allc ation3 of a viol.atioa of Section 75.215 of the rulss ;2sf he brought
�
to t%e Ccrxzissiou':, attention pursuant to action 76.9; a copy of which
is ancloacd. +1 patition for oruer to s:iov causa trust be acco=panie3 by
• a
a eartificatu of sarvica on nay iatcrosted :+Lrson who, uay be directly
affected is sues or.�cr to sho•i cause is ie .:?, d. The petition shonl3 also
atate Cully .%nd preclazly all partinaat facto and cen3itions relied oa to
damonstrata that t1r2 iasuzace- of as ord.Tr to s au cau-se would be is the
public interest. Ps^_t.cal all.a�atioaa &Soap bo s:usportod by affidavit of
a peruon or pursoas -jith actual 1=xcrale:i ;u of t%e facto, ani a :hraits
should ba varifia3 Sy the ,e_noa •rho prepares them. 'kid should mention
sere tint thz ayzta:i nay also be subject to forfoitura pursuant
to Section 75.9 of tit* Comaission's ltulos.
'+
We trust that the foraSoin3 will prove iafor=tive. Mann you for taking
tae ti:.o to contact us.
Sincerely,
^.yr thea ':rr .!d Jef frig r, Chief
Co plaiats S Yaforwation Breach
cospliaraca Division
►
Casale Television lure.au
Enclosure �.
3y3I:iGLtT.7::?3/S!V4,:MC( CTS-TYl'1D: 12/15/30
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I
176.2! S
cetds or parts thereof by chance to
one or more chance takers or ticket
purchasers. it does not Include the
placing or accepting of bets or wagers
on sporting events or contests.
137 FR 3276. Feb. 12. 1972, As amended at 40
FR 6210. Feb. I0. 1975. 42 1-7t 13947. Apr. 13.
1977)
j76.215 Obscenity.
No cable television system operator
when engaged in origination cablecast-
trig shall transmit or permit to be
transmitted on the origination cable -
casting channel or channels material
that !s obscene or Indecent.
142 FR 19347 Apr. 13. 19771
! 76.217 [Reserved)
f 76.221 Sponsorship identification-. list re-
tention: related requirements.
(a) When a cable television system
operator engaged In origination cable -
casting presents any matter for which
money. service, or other valuable con.
sideration Is either directly or indirect-
ly paid or promised to, or charged or
accepted by such cable television
system operator, the cable television
system operator. at the time of the
cablecast, shall announce that such
matter is sponsored, paid for, or fur•
nished. either In whole or in part. and
by whom or on whose behalf such con-
sideration was supplied: Provided.
however. That "service or other valua-
ble consideration" shall not Include
any service or property furnished
either without or at a nominal charge
for use on. or In connection with. a
cablecast unless It is so furnished In
consideration for an Identification of
any person, product. service, trade-
mark. or brand name beyond an Iden.
tification reasonably related to the use
of such service or property on the cab-
lecast. For the purposes of this sec-
tion. the term "sponsored" shall be
deemed to have the same meaning as
"paid for."
(b) Each cable television system op-
erator engaged In origination cable-
casting shall exercise reasonable dili•
gence to obtain from employees. and
from other persons with whore the
system operator deals directly In con•
nection with any matter for cablecast.
Ing. information to enable such system
Title
operator to make the announcement
nouncemen nee made either at_
ill' --W
required by this section.
POUp
(c) In the case of any political orltf-
nation cablecast matter or any origin-
tRator
tion cablecast matter involving the
Ysaou..
cussion of public controversial issues
tlo�t. n
for which any film, record, transcrip
Ktltive
tion, talent, script, or other material
4►etttivr
or service of any kind Is furnished.
director
either directly or Indirectly. to a cable ,y
1046 �.
television system operator as an in- .I
.
ducement for cablecasting such •*
trade a
'We
matter, an announcement shall bee?
for
made both at the beginning and con -oft
o to sh:
elusion of such cablecast on which`'+'
tramP.-
such material or service Is used that ?1
t (e) Ir•
such film, record, transcription. talent. 7
fast m
':
script, or other material or service has 11
uct !
been furnished to such cable television I,
Win[
system operator In connection with 41
trade n '
the transmission of such cablecast . ,
pry p1,
matter. Provided, however. That In 3 faentlot
the case of any cablecast of 5 minute' Z • 6pttstitl.
#
duration of less. only one such an. ;tion. sl- ,t
be 5 .
; , purposc. E
the beginning or conclusion of the cab. 11 • WCh at.
iccast. L tin-
ylaeiat.
(d) The announcement required Dy:2'r
this section shall. In addition to stat• -4; (f) Th
Ing the fact that the origination cable -M i
casting matter was sponsored, paid forU rt , e R"•
or furnished. fully and fairly disclose
Identity the
."want a.
'ponsor.
the true of person or per: -vim
sons. or corporation, committee. asao-.a ;
. wWver g
elation or other unincorporated group,!b -t,
• pot, ext '
or other entity by whom or on whose:t :luettt of
behalf such payment is made or prow~
• form of
)sed. or from whom or on whose behalf •
or othe.
"
such srrvlces or, othu valuable co.-Wd-b
Is by the
atstaosnt
eration received, or whom s .may.
to this t
material or services referred to In a
) "stem c
paragraph (c) of this section are tur-):!
lowing cn
niched. Where an agent or others
person or entity contracts or otherwise 1 '
name. a. tl
makes arrangements with a cable tele -1
the tele►
vision system operator on behalf ofa .
UWr. b
another. and such fact Is known or Dyjt
(Z) Ma
the exercise of reasonable diligence. as i
beta of t
specified in paragraph (b) of this sec-' .'
prate int
tion, could be known to the system op- r _-
matlon a :.
erator. the announcement shall dta- a -
(p Th
close the Identity of the person or per-)
• this sect,
sons or entity on whose behalf such'
; feature 1
agent Is acting Instead of the name oft •-
, !dually
such agent. Where the origination cab. t
: hib)tlon.
lecasting material Is political matter ors -
?
matter Involving the discussion of a t -
irozx 7
the Conn
controversial issue of public lrnpor:,
adopted h
tante and a corporation. committee„
40 F.C.C.
564 v
r
217r
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It t'A r- l���'. sYl •Sat"��. ... .. •.. .. .ri •', t t� +i r.. w•7 Yr t rflrj
�,f }. •r •%rt 1��1�� �y.�1�Y�r j� J{ i S: 7% P '1 i •r Kt ti, 3�'. 4''r 'y;) l t ?'�. vs. v `•a.�1� �ti� �,l•
',ira •i�.!:Y l.�. ha' :+...!L?•i )� :%LA�nSt?r.+ �r'�'i�) :Yrikt!:. �l� i ti. .'tae _ebbe.. • t•a.� .. 4�. i.�ril..:%. Lt .�- !• .9fl 7e •-.
• (rat-
e1•I,t.1t.tmmil?4111AIttiNtl 11111ilkli Ili itf(
..
r �. _
if
. Iit0,1 mst:ul.,t-ni its") hi•64c111 it tthtreirr little tat 1119
nlnll•r of llrl'I lnlut Its the nd.•pfitsn 111111. off any r ill
nuns; of rel,tY e,nwsllrala-
netl•rtl taken by lir t'uuuulOxltin %rill$ re4l.,-et to the
l'r
' III -jl,r t:onuul> ton, atter vou0nlerntinm of flit
tic-111trut. d iw t{tl+-t.. e'a rrqurt+t for flat- rt -turn of a twit-
tdradlttrti ntny drlCruthsr w4rtbrr the puldtr Intrn•At
tls•1, ts•IEt Lr n-I•xr.h•sl n + is rrgnra tar dtxudmnl.
- •'
wrmld la+ 0rtrt-.l 1• She Inst, Ill pls-llr o
1 f- r In part,
(n) i'nllntr t.• _Ic�t r. uh3 n .IK;litktn,Orr f%114" to
—
so, set Ilse Ic-irti•st, ,-r )stay h.ue a rullu;; .pit the
re+i aid Io v0l,int t•+rn>ihfndennt or request for rddl•
coml,lalnt or dlrputy. The Cartmilmlen may sprelty
110nnt usf•+rit.atlnn. %cltl lost cause for dlrml+."l: Aucb
olhcr prucr.lurex, such as oral argument, erldcntlnry
dii-miMr:al %%111 tie icitlumt pre-judire It It occurs prior
rY
hearing, or further written subluls:anny directed to
to the adt.pliim date at any fitmi action taken by the
particular aslit-04, as It dresos appropriate. to the
Cotsunlraun will, rrr•pcct to the p•etltiou.
y ;
errnt tint an Crillentlary hearing is required, the
176.9 nrelrr la Show CAluke: Forfeiture Itrocveding.
',n=
C.•uunlyslan will dt-iri'uAne, 9n the t•aslr of tLr plcnd•
—
Ings and turYt other ptoce.lures as It ntay stsecity,
(it) VIw:u petilit+n ler tiny inten•.tt•d In•rroa, IJtc Cour ,
whether lcmiptrrary relief should too: nils -riled any party
mit+Inn luny;
trolling flit ht-arlItg and ilia natters of any anEh
O) Ix.tl1• ail n:•t••r n,pdting n Cable teb•viAmi n)srra-
` =-
` IrtlllMra ry relief,
tor to Atiri • .•:I t: �•• r: by it %hUllld otit is- dirt•t•tril-iii excite
(t) Where a prittlon for %:alter of list- prerisloss
nitd de.•1xt from %1..1::111++ ihtt (ooytnlxslMl'a lbel.>+;
of ({ 7G..,7(a), 7G.511a 711.111 (n), or Till .OJ •t In ilial
t- hailaU• s f.•rfrituiu +re>,t•t-fain n •+list n cable
'
F within littera. (t9) days after a n -+lural fur carriage,
Ivies- (nn ala rai•:r :or ciulatlmy lit the Ctfmm(ss!on•s
-
■ ay+tlrnl cauunainity null >$n•d nuc entry Int algual of
)hdca.
(. •'.
r
S file ret nC•.,tin etntiatl pestilloic file Comitllxrlinla rulln:
(h) T11r lltltlnn�tfr sMittet tnft.mat:r, D�
r ''
os flit- pelltlon or on the siuestion of (emiwrary relief
letter, but slian 1•t-• acrnenletnied Ity n certlflcate of aetT-
.
prndlul: (ryrther pr%$cc-t-dings.
ice on tiny Isilerexle.1 permtn who may Ire -directly at.
(h) qu a Andin: that lite lotblk hilerr:d xo rtsinires,
fecird It an nrdrr Io show c•netse la issued or it fortalture
ilio Ctinmelwlou slay drtertular that u system comlmu•
procredinl; initiate4l. An oiiRlual and two copies of the
nity unit olierafitg or prolrosliti to esttcrate in a coin-
petitirut and all sul•.resp,rnl ldendinfs should be filed.
Munity 10C..1tril out.dtll tit file 44 cvnt)guuus Mates shall
(c) The pel)tiatt %ball state fully and precisely lilt
comply with prorlslons of tiul•parts 1). F. and G of this
pertinent farts and considerations rolled rt -1 to support
4 v'
part In addition It: Ilse provisto is thereat otherwise
a determination that issunuve of an order to shntr cause
apidleable. In &Itch i$xtunces. any pddillo/$al algrial
or Initiation of it forfrirrlre prescrtdintt would bo in th*
-
carriage hint is aulbnriscd ►.hair he dr mead to tic lmr•
puhlir Intrust. Factual ailegallons ultatl he stil4wrted
suint to lire approprlale prortsicm of 1176.01 (b) or
1y aAhlarit of n lx•olim or persona with actual knvwl•
�' z
U1.63 (a) (nos It relates to 170-01 (b) ).
Mlle of flit- •arta• and exhibits shall The verlked by the .
(1) (Deleted)
Persian who preparrs them. -
' holes: beech part) allna a isctlnnA. cofnmruts• spi—Illon or
litterested IwrorM may s ilsinit coutinerlts er Op-
-
011+4'► pleadS.0 Pursuant to 176.7 t1 lrbrn.N►tbl4' f„r Ilia e..n
luKitlfult; Its lite ih-V11--ll %villlllf thirty (30) day:% af!er It
ltasing accuracy anJ cou,pirt4'ufae of all 1hforMaitnq to —ch
lifts herit file(). For jr mol cnaae $)town ht the petition,
_
t! -
Ktucau+rat. The ptortbi»as of 1 1.63 are wholly 01.1.11cohle to
pl4'a.nuts lurolilat 179,7, #%cvpt that wbrre bisector pro,.
the Coluutil .htn may. fly truer or ielegram in known
1 ! s:-
stoOe of the Sailer teOatel with the former. list asw-rllle pr.,rl•
intere-41od I» rsmix• ,j-m-Ify a lthartrr little for such still -
slope of 1 76.1 are nutrotrtnp. s.t.. where rrOttttrafeuls (-or
mir-A-tax. ('el,talrnlm for sgga.xltlslia 01:111 iN- twry%d Oil
senlcv ea apseelISO Startles 4 ctrtfttn lutorn.allun OKAY wary
14-011101ter ntal am silt lorrxfulos )lurid Its l$etll'lonreit cer-
176.E Ui&mlasal.of special rttlef tetilions.
Ittisaie tit w•rrb•i% and xlull) eontuln a detailed NO
(a) A petition for xpeclai rellrt fully, limn request
xhnwluk, xnl•lutrlK,l by affidavit, of any fuels orelretink-
ot the iMtitlaner, lar dismissed without prejudice as a
+loom,. It•lic,l Int,
r
217r
• - - - *► — as l f
-Y+`;; ..•a, e: . '-�-� p ..�1r.i: •'l. t`: '�-•::r'hf�•
It t'A r- l���'. sYl •Sat"��. ... .. •.. .. .ri •', t t� +i r.. w•7 Yr t rflrj
�,f }. •r •%rt 1��1�� �y.�1�Y�r j� J{ i S: 7% P '1 i •r Kt ti, 3�'. 4''r 'y;) l t ?'�. vs. v `•a.�1� �ti� �,l•
',ira •i�.!:Y l.�. ha' :+...!L?•i )� :%LA�nSt?r.+ �r'�'i�) :Yrikt!:. �l� i ti. .'tae _ebbe.. • t•a.� .. 4�. i.�ril..:%. Lt .�- !• .9fl 7e •-.
Company's eligibility for renewal.
(4) If the Company's performance is found satisfactory, the Council
may renew the franchise for a period not to exceed t_: (10) years.
(5y In the event the Company is determined to have performed un-
satisfactorily, the City Council may terminate the franchise and seek new applicants
for evaluation.
'--A SECTION 8. POLICE POWERS.
In accepting a franchise the Company acknowledges that its rights hereunder are
subject to the police power of the City to adopt and enforce general ordinances
necessary to the safety and welfare of the public; and it agrees to comply with all
applicable general laws and ordinances enacted by the City pursuant to such power,
and for the public health, safety and welfare.
The Company agrees to comply with all applicable FCC regulations, and that
said franchise will not be used in violation of any applicable FCC regulations, or
,_state and local law, including the provisions of Chapter 7.5 of Part 1, Title 9.
of the California Penal Code, commencing with Section 311, and pertaining to obscene
matter. "Matter" as therein defined shall include any transmission by the Company
within the City of Lakewood, pursuant to said franchise, and the Company agrees not
to violate the provisions of Sections 311, et seq., of the California Penal Code.
The City Council of the City of Lakewood finds that the City is primarily a
residential community, and that a great majority of the subscribers to the Company's
service will be the owners of single-family residential homes, many of which are
occupied by minor children. The use of•pub ic streets and property to transmit to
such homes materials, including sexually explicit materials that are no subject to
,valid regulations ar oontr�.� :�
by the FOC, ar in violation of the California Penal Code,
but which are detrimental to the public health, safety and welfare, would be contrary
to the public interest and welfare, and public property and facilities shot. -JA not be
used for such purpose. Therefore, as a cor4ition to
any
use such public streets, ways, places, any violation of which shall be grounds for
revocation thereof, the following are imposed:
a. The Ocapany shall provide each subscriber of a residential
i
premise at no monthly charge with a parental control locking device, or digital code
that allowed the subscriber by operating said device to prohibit the viewing of any
fission under subsection b and c pursuant to this franchise. No deposit shall
be required for parental control locking device or code, except as authorized by the r-
franchise. No person shall renave or disconnect such a controlling device, and the
OmVmy shall maintain the same in good working order during the term of this franctdm. -,
b. All "X-rated" and "r -rated" movies shall be provided on
ae�aarat\ti as specified more specifically in the franchise.
c. Applicant for a franchise agrees that by applying for this -"
f raids said franchise, is granted to it, will be subject to the terms and provisions
of *-.his section, and that the Ooupany will couply with all federal, state and city laws
pa:ohib3tinq the display* of obscene material. The CwpmW, in addition, agrees that
applying for this franchise to use the public streets, way and places of the City of
Lakewood it 'declares its policy against the carriage of X-rated navies, or other such
visual material to any resicleritial home, unless said hams ' is equipped with a parental
control lo&.ir ; device, or digital control, in good working orders and, further, its
policy to advise subscribers at least seven (7) days in advance of the transmission
of any material that is either X-rated or obscene, or in its opinion parental advice
should be exercised in determining whether said material shcould be viewed by anyone
under e4 -:teen (18) years of age. Ti: addition, the City shall be advised at least
-9-
Revised 1-12-8? and 1-26-82
seve4 ;) days prior to the delivery of any s46')material to a subscriber of the con- `
templated transmission of any X-rated movie or such other visual material, or matters
which the Company has rated as obscene, or pertaining to which parental control should
be exercised. The Company further agrees that if the City Council at any time should
r:
determine that any contemplated transmission by the Company that has not been placed on
�=
---seven-day (7) notice to the subscribers, aforementioned, should have been noticed to
subscribers, it shall refrain from the transmission of such material to subscribers
without such proper notification or, in lieu thereof, until a public hearing has been
held before the City Council to determine whether such material, in order to protect
the oublic health, safety and welfare, should be noticed for controlled locking do -
vice or digital control. The Om%uuV further agneas it shall provide imoediately
prior to the trwomission to any subscriber within the City of any matter that is cc
"
should be rated under the provisions herein contained as "gated", cbecals", Or
°°;•_
"parental discsetiol advised". an Ludi0 as>=rxxff rat and a visual announcement. at
`Y•t
least as lang as audio, where appropriate containing the following language:
PC "'fie following feature has bee: rated -PC" by l%,AA. Parental
.
guidance advised."
R Mott) -The following feature has been rated -R" by l99A. It is intended foot
-
violent, nature audiences. Parental discretion is advised. We will show this
sone sex.
Yr.
feature only at night."
a Ward) "Tlze following has been rated -R" by MRA. Zhis indicates that the
film contains mature material and per rats =W wish to consider whetx r
It should be via ed by children under 17. Poe flutiver intemoation
oanoev►ing this feature; please cansult your program. We Will ahw
•
thAs feature only at night."
-
It Nullbe unlawful for eery person to r+seMM amp► sudz locking
-- -
cm tsol cc digital control device, or to intentionally rendre the soar inoperative,
•
acvept dezring the ordinary course of mesintsmamos and repsir. ,
-X-rated movie-, as used herein, has reference to those pwies
`X rated" by the Ibtican Piettzrrs Association of Marica 04'14 • 2he 0o VWW agreas
that arty movie or other video, with or withcnt retrad, or sourd t=an adssicn by it,
that has not been X-rated will be reviewd by it prior to its transmission to sub-
scribers of said system for detexsaination of %kat?et the am* meets the standards of
the MM for x -rating, and if the same does meet the standards of the 1PAh for m -rating
Ow same shall be treated' by it as "x -rated" for the purposo of notification iNw"d
'w
•
by this section. "Qbsoene• as used in this section has reference to those materials
x
that meet the standards for requlation of obamtity established by the California and
r_
Aev. 1-12-82 -10=
�agsx u�xanec�camIMS
_. . .
" t,y
e
_
United States -Supreme Court. "Parental discretion advised" includes any motion picture
or other video and/or sound material 'so rated by the Motion Picture Association of
America - and, in addition, any such material that includes photographic, pictorial,
or sound representation of nudity, sexual conduct, sexual excitement, Sado-maso-
chistic abuse, or beastiality. "Nudity" means the showing of the human male or
female genitals, Pubic area or buttocks with less than a full opaque covering, or
r
the showing of the female breasts with less than a fully opaque covering of any
portion thereof below the top of the nipple, or the depiction of covered male genitals
f:
in a discernably turgid state. "Sexual conduct" means acts of masturbation, homo-
sexuality, sexual intercourse, or physical contact with a person's clothed or unclothed'
genitals, pubic area, buttocks, or, if such a person be a female, the breast.
"Sexual excitement" means a condition of human male or female genitals when in a state
of sexual stimulation or arousal. "Sado-masochistic abuse" means flagellation or
torture by or upon a person clad in undergarments, a mask or -bizarre costume, or the
condition of being fettered, bound or otherwise physically restrained on the part of
one so clothed. "Beastiality"-means the use of violence upon a person in such a
>j
manner that it is harmful to any person under the age of eighteen (18) by predominantly
a
appealing to the prurient, shameful or morbid interest or minors, and is patently
xx �-
offensive to prevailing standards in the adult community as a whole with respect to
Aat.is suitab?e-material for minors, and is utterly without redeeming social importance
for minors.
No one shall knowingly violate the terms and provisions of this
section. In any prosecution pursuant to Section 731 --of the Code of Civil Procedure'
for injunctive or other relief, or in any proceeding for revocation of a franchise
by reason of violation of a provision of this section, or in any criminal proceeding
or prosecution for violation of a provision of this section pertaining to the in-
stallation or maintenance of parental control locking devices, or codes, or pertaining
Rev. 1-12-82 -11-
M11 ON
.12S 1
y
ji6inance No. 81- 18
to the'notice herein required to be given by the Company, and the failure of the Company
to give the required notice, or for violation of the provisions of this section pro-
hibiting the transmission or display of material after notification of a public hearing
thereon before the City Council, or for violation of any order of the City Council
following such public hearing, the mens rea shall be the intent of the person charged
with a violation of this section,of knowingly, or possessing or transmitting, di stri-
buting or receiving, as the case may be, of materials without complying with the pro-
vision of this section, or any order of the City Council issued pursuant thereto. In
such a case, where a prosecution under Sections 311, et seq., of the Penal Code is not
involved. the intent required for a conviction under Sections 311, et seq., of the
Penal Code is inapplicable.
The distribution or possession for the purpose.of distribution or
transmission of any obscene or harmful matter, as defined in the California Penal
Code, or any matter within the provisions of this section, except upon the compliance
of the teras and provisions of this section, is hereby declared to be a public
nuisance.' In addition to any enforcement applicable under the Penal Code of the
State of'California, the Lakewood Municipal Code, and this ordinance, said public
nuisance may be abated pursuant to the provisions of Section 731 of the Code of Civil
Procedure of the State of Califor iia. Said abatement may include, where required,
revocation of any franchise granted hereunder.
SECTION 9. CATV FRANCHISE REQUIRED
No CATV system shall be allowed to occupy or use the streets of the City of
Lakewood, or be allowed to operate without a CATV franchise.
SECTIOtt 10. USE OF COMPANY FACILITIES
The City shall have the right, during the life of this franchise, to install
M
Lffll, CALIFORNIA
WMITY STAMM MW
ED BY BETA RSM OW
S_
THE WEEK OF DEceem 17, 2M mm INTERVIEWS WERE CONDUCTED WITH
BOTH CABLE AND NON -CABLE HOUSEHOLDS. HALF OF THE INTERVIEWS -WERE
wAm WITH MALES AND HALF WITH FEMALES. THE Fa-wwiNc, TABLE otniNEs
THE RESULTS.
PERCENT AGREE I NG THAT PEOPLE SHOULD BE FREE TO
VIEW ADULT ENTERTAINMENT IN THE PRIVACY OF THE HOW ............ 8M
PERCENT AGREEING WITH THE CONCEPT OF SEPARATING ADULT
PROGiLWING FROM FAMILY PROGRAMMING............................0,
%CENT MENTIONING INDIVIDUAL VIEVU OR HEAD OF
HOUSEHOLD AS PERSON WHD SHM HAVE PRIMARY
RESPONSIBILITY TO DETERMINE WHICH U. -PRoGpAms
An ACCEPTABLE ON CABLE T.V ....................................817.
PERCENT MENTIONING CITY COUNCIL OR CABLE SYSTEM
AS PERSON WHO SHOULD HAVE PRIMARY RESPONSIBILITY ......... v # o old
PERCENT WHO WOULD OPPOSE OR IGNORE EFFORTS TO
PREVENT THE PLAYBOY CHANNEL FROM BEING AVAILABLE ...............0i
144.�
_-J)","'Cable TV
Judge: Cable N different from broadcasting
federal judge says a northern Uta'
town can't ban non- porno,;r;ynir
sex and bad Ianguac;e from cable
television because cable su!,scnbe-,
"invite"' the programs into the,.,
homes and mas ca' :cl at any timr
U.S D1;tnct Cou,: Ju4e Hr c
Jenkins Wednsday stru. - down
Roy City's tabic televaion •r-
dinance, saying cabl. trans,ru,,sion,
are different frc•iri broad-ast signals
And they enles the same Fust
Amerxtrnent protections as books,
magazines aM monies show^ :n
regular theaters
"Cable signals travel over wires•
not in the air. The_ are Asked for
They are invited." he said
Communitv Television of Utah. a
cable eornpam•, and sever3! su,,
scribers cfailenged the ordinance
which sought to ban wha: the Citi
council defined as •'incectn!"
material It was awned prima, i-, r:
uncut films shots. ,. : abi+ rnv,;
channels.
Jenkins stn:ck down a:r;,!e:
0
reason but several cortununitics
have adopted the controls o:, a irk -al
level
"Thecourtfinrts great dlffu;il% in
distinguishinC r other than. t!a
;_pcornl between going th.-
movies at a thwa:er and hal iris', (hc
movies come to me in ms 'mine
through electronic 1ran5n!ss:-1ns
over a wire." Jenkins wrote 7h, -
choice
hrChoice iS mine."
Jenkins likened cable televisiof, to
n rn:fge71ne M.Uled to his horne 'I
Need net open its cover I mac pick
and Chose Arr:ong the articles if
displeased. 1 inay cancel rnv suh
scriptian "
"The same Ls true in subscnhink
to a cable television service 1 need
not hook up. I need not tune• in i :liar
pick and chose ancone the
ane} t may can,el '•
Jenkins also s:r!d the• p. c:;,:,s,•i;
oridnance was ar trop:: ,n•- ,c
stitute for Uht: resportsib:lr(t
;Ia:rnLs
to ,u;xr.ie4• the (tit.....
view -rig naD:LS of tneir cn::arcn.
.\o police power or censorship
power can be a substitute for the
rnorai function of the parent and the
`.arnilY,' he wrote
Fli fudge said Utah law already
tirohr'J_t� distribution of por-
nograph!(• material by any :;,cans
Ru; Jenkins sa. he tielieccd :hr Roy
0:.%1)Arrct w3S an alt c(:lpt to ust•
licensing lai%s to con(roi com-
munications that fal; short of hemi;
4! el, callini somrtlani: in-
decent. docs not make it por-
noCrap'itc.•' he said
Roy's •"efinition of "indecency"
w;is overt} broad, he said. and could
!We.fer with the rii;ht of free speech
which is essential to maintaining a
free sxiety
Je-k!ns added that a free society
.:!sat sometimes to:crate ideas that
sic dis_iste!ul ar,d unix_)pular "A
coccal structure tolerant
,1 :.n:: bul approved ideas or
putzts o* c.c•.t is too rntich ;Ain to the
the ilrr.,.an Reich. • he
v
sa id
Roy City Attorney Roger DuLson :
had argued that city had the right to
ban offensive material in addition to
legally pornographic material,
because cable Fent into 80 perMnt of�
Roy's homes and was, therefore.
---
similar to a broadcast rnediurn :
where a less strict standard applied. :
Dutson had cited the case of a Nese -
York City radio station which got
into trouble with the Federal
Cornsr,unications Commission
because it ailed a recording cd a -
monologue by cornedian George :
Carlin that contained several of. :
fensive words- The Supreme Court :
upheld the right of the FCC to ban :
such programming on grounds the :
public should not be "•suprised and
intruded" upon by offensive
material.
But Jenkins Said that case was
irrevelent because "the tran-
smission of electronic signals
through private wires is not%
broadcasting."
Jenkins also said the fact that 80 :
percent of the homes subscribed to
cable, did not reduce the private and
voluntary natu7e u the m-dium-
"The cable signal is not pervasive
in the sense of automatic
avarlabil.ity to all," site y;age wrote
"It is not in the air, present
everywhere, transcending the walls
of a house or a buildung."•
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From the " of
R. N. WHITE /j
R. N. WHITE
2110 W . Lodi Ave.
Lodi, Calif. 9524Q
i
t
��
:y
1
Fmm tart Aa of
R. N. WME
a
,z
���cst gouthem (Ptest Chuxch
2301 WEST LODI AVENUE — LODI. CALIFORNIA 45240 — TELEPHONE (209) 368-2576
Robert D. Lewis, Pastor
January 19, 1983
MR. BRENT BLEIER
1764 LeBec Court
Lodi, California 95240
Dear.Mr. Bleier:
The executive committee of the Lodi Association of Evangelicals supports
you in your effort to control the proliferation of anti -family activities
by the Lodi Cable T.V. we stand opposed to the Playboy channel.
Sincerely,
n
kl� - if4h�e"
Dr. Robert D. Lewis, Secretary
Lodi Association of .evangelicals
James W. Baum
1420 EDGEWOOD DRIVE
LODI. CALIFORNIA 95240
.�
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CITY OF LODI
221 West Pine Street
Lodi, California 95240
Dear Mrs. Olson:
r, •.!int
December�,2�, `11982
l:t? NEC 21
I am very concerned about the issue before the City Council having
to do with the "Playboy" type programming option on the Lodi Cable
channel. I am sensitive to the First Amendment issues involved
with the rights of an individual to view what he will, but it is
also my belief that it is well within the City Council's right to
regulate the type of programming within the city boundaries; a
right that many other cities have exercised in the regulation of
this type of programming.
I am sure that I am typical of many people that chose Lodi and its
surrounding area to live, work and raise a family in because of
its conservative, moral and religious environment. I believe the
uncontrolled availability of this type of programming seriously
threatens these traditional values and I strongly oppose it.
As a concerned citizen, I would urge you to consider the
following. First, make publically known your personal oppositions
to this type of programming. Secondly, require that the cable
operators install a lockbox type of receiver on all of their
installations, not just as an optional accessory. This will go a
long way in restricting the unsupervised viewing of adult program-
ming by children. Thirdly, consider an ordinance making it il-
legal for a minor to view this adult programming without parental
consent. It seems to me that the regulations imposed on this type
of programming should be no less in the home than in a theatre.
I am appreciative of the decisions you have made in the past in
regard to the welfare of our City and am.confident that you will
make the right decision concerning this crucial issue.
Si cerely,
Lar y WePell
301 W. Locust Street
l,,o , CA 95240
E-]
LAW OFFlCES of
BRENTON A. BLEIER
404 WEST P"M STR[ET. wrn TWO
LOOT. CAUFOPWAA 90240
(2001333-2146
January 7, 1983
Dear Fellow Lodian:
I am writing to solicit your support in placing some restraints
upon the showing of sexually exploiti•ie programming to minors
by means of cable television in Lodi.
I recently attended the Western Cable Television Exhibition
in Anaheim. There I learned that the Playboy Corporation,
which has suffered financial reverses in recent years, is at-
tempting to regain its profitability by undertaking extensive
promotion of its sexually exploitive cable programming channel
across the nation. At the Exhibition, I saw the promotional.
film for the channel and heard presentations from Playboy
personnel regarding its profit potential for cable operators.
I discussed with several colleagues at the.Exhibition the fact
that the most likely markets for such programming would be large
cities which already have substantially developed markets for
porno movie houses and so-called adult bookstores. Addition-
ally, even the larger cities in our area of California, Stockton
and Sacramento, do not have this type of programming. You can
well imagine my surprise when I returned home to Lodi to find
that our local cable operator had launched a significant ad-
vertising campaign regarding their offer of the Playboy Channel
in Lodi.
Based upon my review of the promotional material at the Cable
Exhibition, there is no question in my mind that this type of
programming exploits and degrades women, tends to harden and
cheapen the treatment of women by men and is a strong negative
influence on any society. However-, the most disturbing impact
of this programming, in my view, will be upon our young chil-
dren and teenagers. It will clearly distort their perceptions
of appropriate sexual behavior and will contribute to the prob-
lems that our children and youth are already experien-ting in
the area of sexual adjustment.
While this sexually exploitive material is clearly an unhealthy
addition to television programming in Lod -i, as a former pro-
secutor, I must admit that it probably does not meet the very
• 4
liberal, --le-gal _test _of "obscenity" as it is interpreted in
California. However, it does feature frontal nudity of both
sexes, graphic depictions of sexual intercourse and extended
and explicit "talk show" formats which encourage a wide variety
of deviant sexual practices.
Unfortunately, with the permissiveness in sexual matters man-
dated by our liberal appellate judges in California there are
really very few areas where city government can still have an
impact on this major social problem. However, because cable
television operators utilize public utility easements in local
rights of way, local governments have been given a certain
amount of latitude to regulate cable television.
On December 8, 1982, I presented the Lodi City Council with
three specific steps which I feel can be taken by the Council
legally and should be taken morally to help concerned parents
in Lodi who want to protect their children and teenagers from
this adverse influence.
1. The local cable operator, which is a division of King Broad-
casting Company of Seattle, Washington, received a twenty-year
franchise from the City of Lodi in 1967. This means that the
cable operator's franchise will, absent a renewal, terminate in
1987. I believe the Council members can, and should, individually
pledge to the community and inform the cable operator that when
the current franchise expires in 1987, they will not vote to
award or renew a franchise for any operator which has acted
'
- irresponsibly in handling sexually exploitive programming in
y
Lodi.
It should be noted that King Broadcasting generates approximately
1.2 million dollars per year from regular cable programming in
Lodi. I believe it is entirely possible that the company may
not wish to endanger this entire revenue stream for the sake of
a few thousand dollars more generated by sexually exploitive pro-
gramming.
2. I believe the Council should adopt a "sense of the Council"
resolution which, although not legally binding upon the cable
operator, would "encourage" the cable operator to:
a) reconsider the adverse impact of this type of pro-
gramming upon a strong family market such as Lodi;
b) promise in writing not to cablecast promotional
"samples" or "previews" of this sexually exploitive
programming upon the regular cable channels (as
has occurred in other cities); and
-2-
c)
•
E
provide, free of charge and mandatorily, to every
subscriber to sexually exploitive programming,
keylock converters which can be used to prevent
unauthorized viewing of this material. (This is
commonly done by cable operators in other cities
and can be accomplished at a very small cost.)
3. I believe the Council should adopt an ordinance which
would make it unlawful in Lodi for any adult to display
this sexually exploitive programming, as carefully defined
in the ordinance, to a minor unless
a) the minor's parent is physically present during
the showing or
b) the minor's parent has provided the displaying
adult with the parent's permission for such a
showing in writing.
I believe the ordinance is necessary because experience has
shown that subscribers who wish to view this type of material
themselves are often oblivious to the harm it can wreak upon
developing personalities. I believe that the ordinance, even
if it did not result in any prosecutions, would have a salutory
effect in expressing the sense of the community, acting through
its City Council, that this type of programming must not be
displayed to minors.
At the Council meeting of December 8, the City Council seemed
hesitant and uncertain. Mr. Pinkerton and Mr. Murphy expressed
reservations about "legislating morality" for our children and
indicated that it was up to the family to control such pro-
gramming. However, I believe that we must attempt to deal
with irresponsible adults who enjoy such sexually exploitive
programming and may gain perverse satisfaction in making it
available to naturally inquisitive minors without the permission
or approval of the minor's parents. I stressed to Mr. Pinkerton
that neither the resolution nor the ordinance I propose would
interfere with his right, as an adult, to view such sexually
exploitive programming. '
However, I believe that most members of the Council will be
receptive to the views of the community when the matter is
brought back to them on Wednesday evening, January 19, 1983
at 8:00 p.m. This is where I need your help in two ways.
First, if you can possibly do so, please attend the meeting
in person, express your own views, and lend support to the
Council's consideration of these items.
-3-
I
Second, if you cannot attend, please complete and return
the enclosed postcard to me giving me your name and
address--ard indicating you r"wi`1ingness to stand with
me against the Playboy Channel for our children. I
hope to present these postcards to the Council that
evening as evidence of the sense of our community
against this programming.
Please keep in mind that Lodi Cable presently has only
about 350 subscribers to the Playboy Channel out of 8,000
regular subscribers. But with the vast financial re-
sources of the Playboy empire focused upon Lodi and with
their slick promotional efforts, that total could grow
to 1,000 or 1,500 subscribers quickly - a veritable
epidemic of porn directed against the children of our
community.
If you have any questions on the specific wording or pro-
visions of the resolution or ordinance which I have proposed
or on their legal effect, please feel free to call me during
the day at my office, 333-2146, or in the evenings at my
home, 334-4418. Will you join me in urging the Council to
action on this matter? Please retur the encl sed card to
me today for the sake of our childreg.
BAB/eab
Very', tJruip ygurC
BRENTON A. BLEIER
Attorney at Law
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RECEIVED
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:521 South -ur
Lodi Cable 1 _oc'. Cat.termi 952a
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?041369 7,51
An And,ate of hinp Company
January 5, 1982
Non. Fred Reid
Mayor, City of Lodi
City Hall
Lodi, Ca. 95240
Mr. Mayor, members of City Council, Mr. Glaves:
- l Escapade
Lodi Cable TV Degan selling an adult movie pay-TV service called E capa e
in October 1981. During November 1982 the service changed its name to the
Playboy Channel. We have made parental control locks available at our cost
($16) from the start of the service to enable people who wish to control viewing
of the channel to do so. We installed and removed the locks without charge.
Due to the concern voiced by the city council, as representatives of the
community, we will change effective immediately, our procedure to include a
buy-back guarantee when the lock is no longer desired and when the lock and
keys are returned in good working condition. We will continue to explain its
availability to all new Playboy Channel customers and explain the buy-'-)ack
policy. We feel strongly that the cost of the locks should not be borne by
anyone other than persons desiring them, as the use of them is strictly voluntary.
To date we have sold only 12 of the locks with over 800 customers trying the
service in the 14 months it has been available.
The Playboy Channel is part of the choice of services we make available to
our customers. It will not be previewed or descrambled at any time and is sold
and marketed as viewing for mature adults. I want to thank the council and the
city attorney for their consideration and attention to this topic.
Si ;erely,
tiL .... 4,
L't
Deanna Enright, Manager Lodi Cable TV
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RECEIVED
1311 Mika to JX 8- 5 2
Lodi, CA 2
AUM M. REIWtE
VTY CLERK
VTTY OF L0.01
Mr. Fred Reid, Mayor, City of Lodi
City Hall
221 Wast Pine Street
Lodi, CA 95240
Dear Mayor Reid:
The Lodi City Council had an opportunity last evening to take
a definitive stand on a very delicate matter. Unfortunately,
the Council as a collective group lacked the fortitude to make
that difficult decision and instead chose to pass the problem
along to another bureaucratic agency.
I refer, of course, to the Council's decision to request an
opinion from the Attorney General of the State of California
as to whether or not the Council has the authority to pass an
ordinance relative to the display of "Pornography" on our local
cable tv channel. After public discussion ceased, the Council
had an opportunity to express its view on the subject.
As I.recall the commentary, Mr. Snider led off with a reading
of a letter from his pastor which set forth an opinion that,
while the television films in question may not be beneficial to
the mental and moral development of children, the over riding
question presented to the Council was the ability of a munici-
pality to legistate morality for individuals in possible viola-
tion of the First Amendment. Mr. Snider indicated that he
concurred with the thoughts set forth in the letter.
:ors. Olson next addressed the audience ai,d discussed her experiences
relative to raising children and grd,Achildren and indicated she
felt it was a parental, rather than go•'ernmental, responsibility
to insure that children received a proper sense of values.
Your comments followed, and has I recall, They were centered about
your confusion arising from the conflictinq legal opinions
presented to the Council. As such you ind3.cated your preference
in the form of a motion, seconded by Mrs. Olson, that the entire
matter be presented to the Attorney General for possible clarifi-
cation.
Mr. Pinkerton spoke following your remarks and., in his usual less
than civil manner, proceeded to speak of search warrents and
tresspassing while cordeming the proposed ordinance which was the
subject of discussion.
At this point in time it would appear to me that the Council was
divided along the lines of three individuals who expressed their
dissatisfaction with the proposed ordinance and one individual,
yourself, who thought that additional help from the Attorney
General should be sought prior to resolving the problem. Yet
when the matter was called to a vote, I was totally surprised to
find that the vote to pass the matter along to the Attorney
General was three -to -one in favor, with Mr. Snider casting the
only "no" vote. Unless my ears deceived me during the hearing,
the preponderance of the Council set forth one opinion publicly
and then voted to follow a contrary path.
If the Attorney General holds that the City of Lodi can preempt
state law in this matter (which I doubt he will do), Council will
only have to face this decision once again several months down
the road. At that time you will be forced to make a decision,
pro-or.con, and I hope you will give serious thought between now
and then as to what your actions would be. Either way, the Council
is not going to win in that they are going to offend the sensiti-
vities of certain people within the community of Lodi. But you
were not elected to satisfy all the members of the community. I
would encourage you to have the strength of your convictions as a
Council -..and to vote matters as you see fit regardless of the
sensitivity of the issue.
Ve trul y rs,
Ro t ohnson
RJJ:ld
cc: Mrs. Olson
Mr. Snyder ..ail'
Mr. Pinkerton
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City Of'. LOdi'- K VAI, -€
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Lodi:, :.`Ca• 95240
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{" r Your no ,vote last night conce1. rning., the .`Playboy Channe , s � Y, _ .
i.r k fi
a - pornography is to be commended: The_proposed ardinone `,,! 4�
i:" �`r xould not have=been enforcible nor ,.would`' -i t; have;8ignfi�{,;s {�+Mi
�: cantly' -effected childrens access to:;the' so cal'ed` Adulf v' �"
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Pro-graaeing.. 3 �t % s
l .. -.. - - a i 'ir 4vrg� a."ak -
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z P1eAse tie aware, however, that `hew .teehndlogies ari oh 1. the, r f Y
r;'' horizonl.and ,this wi1.l,not be the first time you are eahfron=� r���
r z; ted with the; issue of home pornogreph�, ,`The :peddlers";of r ,m ° ��"�,.-,. ���
} .I
�"- M`;, f porn need the' children of this +.nation tai sin sec'ess -tor " „ �
fx3''r g a c, a- s t c!:
Y ?t €�'t' their SlIUT. They ere their future-consumarp `' "�
,` y , iy 4 >4 `�r'r�> f
,.3 rj z7fie` P�Ieyboy .Channel has mild programming cam ereci: c'what _ " �
is presently shown on` the '-MDS Sys1.tem1.s, such as Cal S 's -I " I.L. pragram,ning..tn Sacramento. f11 ou ca�I.Y- bP sure .that th'e :Pay �4 I.�.
° �O
�c tV.::distrfbutors Mill' .be c.oatpating rtitt� 3eaci� othet� fur °the ; � .4, t
�k �' save audiences and rill be': increasing the' severity a- their ma n . ,
�t deviant pro ra�aa�ing. x .{ t' ` .x� 4!'2 �r . ,
S xi S �,r,w1�-�+ t J� `••. s�''T b .r {n , .. Y.y v
rP b y t 3. y ti s � y11
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'•� �yfdG �. J' fC' 'R .''.k) '�` A4 F 'y 5 S.' C 1, g./T: M!t'eR •`.. ku^n S,.V`S9T2 ..'�-- jC'-h,?.1 d� 1-
»:.� waw ;=tfsg children in today:s:_ xorl�f of_: advance, aoi�a�� xG' aFj
irtz xh 1; N ♦ Z 3 ,_ e 5 R?a f. �kFy Y
f ., r, 7 technology d not`: the same; as 't'W- bnty, thirty; t rr farty'� y s � � t
a+�o. � If' 4'3ease_ do °not expect': par-e,nts .o} he tt�rsamo �oari�t: 354 r� s.
.. -'xkv &:: - s� tw, , F r - , a sk` -_°'� .L�'... a I
'Idvl r tbl ir; children you haclMw���*UAWO the)e�are mal?y -_`#- l��tgss F�. �] �
r. �`; �pa>•ent� 'bogie children xiTl have aceti c . �o the M t �s, �_
Dyt' .Y�l�l `�nr3� Yti" t i r_H X"�. i sit r I Yz_'�' > c`�7 � F
?F �_ ptn o ne ^futur:e. They . f+ill :be nterac� �7 is �rd� ' s r s
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hss ildreii. Parents cannot insulate I.ttetselvesfroar t.NiM �,:
i 5rF7� yl � 5g . .O C t • �d r 2 4 g"ivi."�"g,"',�
R r r < 9+xs
4 y ?` 4 r t r !. f<`�. fix,_ ry i• -c q�'".N , t,'4.£ k
b ,. f, ' 1� � lr `" - - * . z.- : c.Lir;sac. _-a�, - T-
4h� ti in . the Terent.s .who 'toda i none thus rablem: i+ir T
f ► p Y g P �f
°' '� ? 3k `gab , ng their 'children's future: to t'h' ""� ho aco�li� c" Lxr,� �, y moi.
�II, t I t.& , t�k r t � r Y k£ �t�
; rh" , ' ra;,F : �l." , , ou tfie .xalfare of our youth. Our nation►µ ash t :' ono •
`,�, she.'' �ti4, &d w h.pornaflra h withowt:`adegcsste sefpg�tI.m�1' .W;--'" �; ..
q T h• ,>>,,+,, tc} t -, { `a � k ; i - . � ..9 p Y M. .m .% 4 ,{y u'.'4` u s r+i W;,n -1z...kJ,t. r'.
`�F}'=��sto at :q's�can 'imagine' a future' xl�ere Group Sex 5sdi,lnas�q»}:"syr'
R �O YZr } r
> > ��:-.fi b �;.`X1. d ° ,a` rix a f`
. ,,T+.,i, i _I. 4,", # ,ryps'a.� ._j���Ilk':.'' �e �,e'�, ��,�,.�. f,_�� , ._ aM'{Y" v4'•_ n r7 t..?3 4 q:x � .a; a. , �., .
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cism,, Incest, Bizarre .Sex, :and ,Sexual violence
towards :women, are =
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Fred Reid, Mayor
City Council Members
Gentlemen:
[Z
RECEIVED
N3 JM.24 A,& 52
-CTL K
JanuaryCW1 9001
In my opinion, the city council in its decision to refer the
Playboy Channel matter to the State Attorney Gereral, let us down.
You, as members of the council, were elected because of..your'leadership
qualities and your desire to serve the interests of the community.
Letting the Attorney Gereral give you an "out" seems to c: to reek
of politics, the same accusation made of Mr. Bleier by Mr. Pinkerton.
To me the solution is simple. The council should issue a resolution
and a publicstatement to the cable TV company indicating your disfavor
of the Playboy Channel type programing. None of you seemed to have a
moral objection on that ground.
As far as an ordinance is concerned, it seemed clear to me, as
well as, acceptable, that the city council should not be directing what
can or cannot be viewed in a persons home. A law7or one soon be-
comes a loophole for another. Mr. Bleier's proposal was too restricitve
in one way and not enough in another.
But, by taking a moral stand that you will reject pornographic
material'in our town through all legal means avail able, 'including the
review of the cable TV license to do business, gives you the "back -bone"
I thought you had!
My wife and I do the best we can in raising three children. But
as much as we recognize that they are our responsibility, we need help.
We are, after all, a community of people helping people. The council
members, individually and collectively, can serve as examples. We
prefer you to be good models of leadership.
v v,� C9
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l AM.
� t983 •-
: 521
Mayor Fred Reid
City Hall
221 U. Pine
Lodi, CA 95240
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9
MORALITY IN ME131A _
Page Three
MIM Target of the Month
YOUR MAYOR -ASK THIQ HE WRITE PRESIDENT
The traffic in pornography is out of control. It is a $6 billion plus industry, and
growing—largely brcause the U.S. Department of Justice Is not vigorously enforcing
The federal laws probibilleg the interstate transportation. mailing and importation of
obscene materials. We are at the point where only a directive from the President will
bring about the aggressive enforcement that is necessary. Morality in Media suggests
you write the Mayor of your city or town. Tell him that the vilest pornography im-
agiaable Is crossing slate lines and coming into your city in violation of federal law.
Tell him that vigorous enforcement of federal obscenity law could stop this traffic
within IS months. Ask him to write The President of the United States and request that
be direct The Attorney General to enforce the federal obscenity laws to keep this
villoma traffic out of your city.
RoLently the Mayor of a New Jersey town wrote to the President, and then con-
tacted 500 other New Jersey mayor asking them to take the same action. It is this sort
of action on the part of Mayors that could bring about the Presidential directive that
is needed to get the U.S. Department of Justice to move.
Ask your Mayor to write the President, telling him that the obscenity traffic has
reached a level of national concern; that it is being shipped into your city and state in
violation of federal laws; that enforcement of those laws has been wholely inade-
quate; and that federal enforcement must be more effective and aggressive if this
social ill is to be cured.
Morality is Media suggests you write your Mayor now. Ask him to write the Presi-
deal requesting that be publicly announce that the federal laws relating to the mailing.
Importing. interstale transportation and broadcasting of obscenity is a matter of ul-
mom importance; that be direct The Attorney General to issue instructions To the
Federal Bureau of Investigation and all United States Attorneys to make thb a matter
of prime concern; and request that such instructions authorize and encourage all U.S.
Atlorneys to institute criminal proceedings of violations of such laws brought to their
attention by the FBI. the U.S. Postal Service and U.S. Customs. Ask that your Mayor
tell The President that aggressive enforcement of federal obscenity laws can and will
slop The traffic in pornography that is flooding your slate and your city. Suggest to
your Mayor that be Inform other Mayors in your state that be has written the Presi-
deat. and ask them to take the same action. Please send a copy of your letter to The
Mayor and his or her subsequent r-,Iy to Morality in Media. 475 Riverside Drive,
New York. N.Y. 10115. Please write your Mayor now, while you have this Newsletter
before you.
Porn Peddlers Invade Wall St. a 2nd Time
Last Spring it was repotted in these pages
that a cabteporn programming service had
gone to Wall Street with a stock offering. ap-
parently designed to obtain financial backing
for the production of new porno films and
the maintenance of a "film library."
In early October. syndicated financial col-
umnist Dan Dorfman, reported another inva-
sion of Wall Street. this time by a newly
formed firm calling itself Westar Productions
Ltd. The firm was set to file a statement with
the Securities and Exchange Commission
seeking approval to sell $5 million worth of
limited partnerships to be used for the pro-
duction of 30 pornographic films. Films are
to be produced with an eye toward both video
cassettes and cable television. Principals in
the new firm are the same as those in IFC
Entertainment Ltd.. which provides the Eros
porn film service for subscription TV outlets.
The Dorfman column reviewed the profit
potential of porno video cassettes, and
quoted Roger Chan, sales manager of
Caballero Control Corp. of California as say-
ing. "... we're going to grow because we're
putting a lot more quality into these films."
Dorfman identifies Caballero Control Corp.
as "one of the country's largest producers
or, portio films for video cassettes.
Roger Chan and three associates at Cabal-
lcro are defendants in an upcoming Ml -
PORN trial. charged with conspiracy to
transport obscene matter interstate. and
interstate transportation of obscene material.
4
January 18, 1983
2115 Jackson St.
Lodi, Ca.
Dear Lodi City Council Members:
Revelant to the "Playboy" channel that King Broadcasting is
currently promoting for programming in Lodi, and Lhat is being
debated by the Lodi City Council for possible regulartory
action, may I please add Try point of view.
Since following this issue I have made some inquiries into the
complexities of passing a city ordinance. I spoke with the
Sacramento City Attorneys office to hoar how they handled the
issue. I,also, have a copy of the ordinance: they passed.
Given the laws and conditions, there is no doubt of the com-
plexities of the issue. I know the members of the City Council
are all moral people trying to do a "good" job for Lodi.
However, in this time when our society has so many social
problems I believe it is necessary to make value judgements
when you are elected representatives, of course, within the
framework of the law. It would seem clearly apparent that
no responsible person would advocate children watching explicit
sex, particularity if it is reasoned to be obscene or
pornographic. Ofcvurse, the question is what is obscene?
The Supreme Court had difficulity answering the question.
However, as I read the decision, my understanding is that a
community can decide that for themselves. I would like to
see the City Council make such a resolution, as related to
children viewing "Movie Vision", or "Playboy" programming.
My concern is that of adding any more explicit sex viewing to
what is already available on our public airways. Children
are not fully developed in their physical, mental, or emotional
growth, and neither do they come equiped with a full set of
value judgements when they are born. Neer pressures are, and
always have teen significant;now even more -so in our changing
society, with many single parents and, two working parents.
In many cases when two parents are working it is because of
economic pressures, and the television becomes a "baby sitterr
as well as the only form of recreation and entertainment.
I agree with Deanna Enright, manager of Lodi Cable T.V.
when she states that the responsibility for monitoring what
a minor watches on Television lays with the parents. However,
the unfortunate truth is that many parents in our society are
not taking, or cannot take responsibility for their children.
Ret teen-age promiscuity, teen-age birth-rate ( the entire
birth rate in the U.S. is highest among teen-agers), not to
mention veneral diseases, among which herpies is at epidemic
proportions. This is a social problem for which all who pay
taxes are paying an economic price, not to add the tragedy of
was'ed human lives.
K
(l)
Where do moral attitudes develop, or for that matter any
attitude? Some people would like to believe soley in the
home. This is not true. After a certain very young age
peers, and society have more affect. Children do not live
in a parent controlled world. They are exposed to much
more adult media then is desirable. Many children are
growing up without a single appropriate role model in their
life, and for that matter without a single person to discuss
developmental problems with. Books, magazines, T.V., and
peers become the parents. Some people say "Oh, I never did
that with my child", or "that child is exposed to inappro-
priate behavior in their own home,so what's the difference?"
The difference is the quanity of exposure. The real problem
with more "Playboy"programming is not specifically how
obscene is it, or maybe its not at all, for an adult,but
that this type of programming has become commonplace. What
becomes commonplace can seem normal, and especially to
children who have little to compare with. In one study of
teen-agers, 14 and 15 year olds said they felt "abnormal"
if they had not engaged in sex by 15 years, this included boys
and girls, and felt pressure to become involved even when not
wanting to. There is no doubt, we are dealing with a social
problem that has many implications. There are many in society
ready to exploit economically, the weak and the young, and
rationalize doing so. I cannot say this is true of KIng
Broadcasting, or that the "Playboy" station is obscene, because'
I don1t know.
My concerns are not to suggest limiting anyonels freedom,or
suggest that The City Council legislate morality,although
most of our laws have a moral. foundation,but my concerns are
to suggest that freedom under the First Ammendment includes
everyone. I have a right to say, as do others in our
community that we want some restrictions on the use of our
public airways, and some kinds of publically stated re-
strictions placed upon children viewing obscene or "sexually
explicit material.
The Lodi Public Library has a policy that restricts children
from checking out adult fiction. T.V. is much more piwerfull.y
graphic, and ,also, interprets for us. Books have an in-
herent restrictive condition, which is readership is dependent
upon vocabulary and comprehension.
I suggest that The City Council find a way, within the frame-
work of the law to make an unmistakable resolution regarding
this issue that will restrict,or limit more programming in
Lodi,of the nature of the "Playboy" type,or make it more
difficult for children to see.
Thank you for listening.
Very truly yours,
r .
Dear Randy:
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Bob Mattheis
January 17, 1983
I would like to share my thoughts with you regarding the availability of
the Playboy Channel in Lodi through Lodi Cable T.V.
Although I have not viewed the material proposed for broadcast, I understand
that it is primarily concerned with graphic depicticr;s of human sexual relations.
I personally believe that sustained viewing of such material by adults as well as
children is destructive to the emotional, mental and spiritual well being of such
viewers. Should anyone seek my guidance regarding the decision to make such pro-
granning available in their. home I would speak against it. I do not believe that
a responsible, mature Christian would make a decision to have this programming
in their home.
I do, however, oppose any action by the Lodi City Council which would place
restraints on what kinds of material are viewed by what persons in the privacy
of an individuals home. Not only is such an ordinance unenforeceable, it takes
responsibility away from parents and citizens and places it with the City Council.
'There are other means by which concerned citizens can act to express their dislike
for the presence of the Playboy Channel in Lodi.
There is abundant evidence that violence in T.V. programming (freely available
over Channels 3, 10, 13,40) is also extremely harmful to children who have a heavy
exposure to T.V. Programming. I personally believe that the outrageous morality
depicted on "Soaps" is also destructive. We will not solve the morality problem
by placing lock boxes on the Playboy Channel. We will begin to make a difference
if we dare to face our own addiction to T.V. and move past it to selective T.V.
viewing. Should we, as concerned citizens and/or committed Christians strongly
oppose the Playboy Chantel, we can cancel our subscription to cable T.V. until.
such time as it is no longer offered here.
Surely we can live without cable! We do not need legislative action to make
us do what we feel should be done. In this case, power does not reside in law,
but in the convictions of the people of Lodi. Lets not make someone else be tale
"bad guy." It's our responsibility and we have the power entirely apart from the
le*islative process. It's called "subscription power." No one would be emotionally,
spiritually, or mentally harmed if cable was removed from their homes or from the
Lodi market. In fact, I strongly suspect that the quality of our life would improve
if we chose to watch less T.V. Now, let's stop giving Lodi Cable T.V. and Playboy
Channel free publicity and be about the business of being responsible citizens.
Thanks for listening. Feel free to share any of my views if you should care
to do so.
W,/mh
cerely,
"--
Pastor Robert Mattheis
IN CHRIST... Growing ... Caring ... Witnessing ... Worshipping
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