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2/21/2024 12:15:36 PM
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Planning Files - Planning File #
1787
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Planning-Other
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Memorandum <br />March 30, 1988 <br />Page 6 <br />V. COURT HISTORY REGARDING LOCAL ORDINANCES ON OBSCENITY <br />Even though the attempt to regulate adult programming <br />would in all probability not survive constitutional First <br />Amendment scrutiny, some local officials have asked whether <br />they could enforce their local franchise ordinances in which <br />the Company has agreed not to cable cast pornographic pro- <br />gramming. Local ordinances which have been drafted to pre- <br />vent obscene or indecent cable programming have not survived <br />scrutiny by the courts. Roy City, Utah, had passed an ordi- <br />nance which permitted the revocation of cable franchise <br />permits or the imposing of fines for "knowingly distrib- <br />uting] any pornographic or indecent material as defined by <br />law or in violation of the community standards." In Com- <br />munity Television of Utah v. Roy City, 555 F. Supp. 1164 (D. <br />Utah 1984), the court held the Roy City ordinance to be <br />unconstitutional. The Roy City court distinguished between <br />broadcast television and cable television. The court stated <br />that cable signals are "invited" into the home while broad- <br />cast signals are not. The court stated that broadcast tele- <br />vision "is pervasive because its medium, the air, is perva- <br />sive. Transmission by wire is not." Roy City at 1169. <br />The United States District Court for the Southern Dis- <br />trict of Florida enjoined the City of Miami from enforcing <br />its ordinance which prohibited the distribution of indecent <br />material over cable television. The City was also enjoined <br />from implementing procedures established to enforce this <br />prohibition. In Cruz v. Ferre 571 F. Supp. 125 (S.D. Fla. <br />1983), the court held the city ordinance to be unconstitu- <br />tional since the provisions of the ordinance which tried to <br />regulate indecent material exceeded permissible limits for <br />the regulation of obscenity as set forth by the Supreme <br />Court in Miller v. California. Again the court relied on <br />the ability of the consumer to control whether or not they <br />chose to receive cable television signals. <br />Therefore, although the member cities could choose to <br />attempt to enforce their franchise ordinance, a court would <br />likely conclude that the enforcement of the ordinance in an <br />attempt to restrict the First Amendment rights of the Com- <br />pany would be unconstitutional and therefore impermissible. <br />
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