Basic Cable Nudity Can Be Nixed in Michigan

It’s official: Nudity on cable TV can be prosecuted in Michigan as indecent exposure, although one prominent First Amendment attorney says the decision likely won’t set precedent.

In a little-noted five-line denial, the Michigan Supreme Court last month let stand a lower-court ruling, stating that it was “not persuaded that the questions presented should be reviewed by this court.”

Setting the precedent that cable nudity is indecent exposure and not protected speech could provide cable-content foes with an avenue to pursue that does not involve the FCC or an
à la carte bill. A federal bill toughening indecency enforcement has yet to pass, and the issue of restricting cable content has flared up in recent months.

According to Steve Savickas, the original trial lawyer for defendant Timothy Bruce Huffman, a Washington firm may take the Michigan case to the Supreme Court pro bono, but the ACLU has decided not to appeal it further.

Says ACLU Legal Director Steve Shapiro, “I think the decision was wrong, but absent any disagreement in the lower courts or some evidence that the problem is widespread beyond Michigan, I think the chance the court will take the case is pretty slim.”

A Michigan court of appeals last May found that Michigan’s indecent-exposure statute applies to television, in this case the performing genitals (think Groove Tube or Puppetry of the Penis) on a cable access channel back in April 2000. That appeals court had even concluded that TV nudity “can be more offensive than a more traditional public exposure.”

Moreover, “the incidental restriction on defendant’s First Amendment freedom is not greater than is essential to the furtherance of the governmental interest in promoting public morality by prohibiting public nudity,” the appeals court concluded. “We see no reason to read into the statute a limitation that would prevent its application to defendant’s televised and, therefore, powerfully effective exposure.”

The conviction trumps cable’s hallowed First Amendment protections, at least in that court’s jurisdiction—the decision is not binding on other trial courts—and could still give other jurisdictions a road map for regulating cable indecency.

First Amendment Attorney Robert Corn-Revere cautions against overstating the case. A partner at Davis Wright Tremaine in Washington who helped protect cable content from government regulation with his victory in the Playboy case before the Supreme Court, he  says it is unlikely the ruling will be followed by any court outside Michigan.

“This decision is an aberration,” he says, “and is directly at odds with established Supreme Court precedent.”

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.