As the merits of banning pornography and “Koala TV” from Student-Run Television continue to be debated, the legality and the ramifications of the actions taken by the A.S. Council remain ambiguous, according to legal experts.
On Oct. 23, the council, seeking no legal advice outside of the university, voted to ban “graphic depiction of sexual activity involving nudity” from being aired on SRTV at any time. In response, John Muir College senior Steve York broadcast a pornographic video on SRTV, this time featuring the superimposed face of Thurgood Marshall College Senior Senator Kate Pillon — a vocal supporter of the council’s decision — over that of the original actress.
Although York said he did not believe the legislation to be in effect at the time of the broadcast, the council unanimously voted on Nov. 2 to ban York and “Koala TV” members from SRTV.
All of the council’s actions to date have been within legal bounds, according to Associate Campus Counsel Daniel W. Park, who has met with both representatives of SRTV and the A.S. Council in the matter.
“The simple answer is that the SRTV service belongs to A.S.,” Park said. “They can determine what kind of material they want to show and to not show.”
However, the fact that student government operates the station is not necessarily legal justification to censor content, according to Mark Goodman, executive director of the Student Press Law Center.
“I would certainly argue that censorship of the show’s content was not within the legal rights of the council,” Goodman said. “A ban on nudity is clearly a violation of both state law and the U.S. Constitution.”
Goodman cited a 1973 Supreme Court ruling in Papish v. Board of Curators of the University of Missouri as precedent for the censorship issue, which stated that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”
“The court ruled that conventions of decency can never alone be justification to censor student expression,” he said. “Legal obscenity would not be protected by the First Amendment. However, this material was not legally obscene.”
According to Park, the council’s oversight of subject matter is acceptable because SRTV is a “nonpublic forum” to which the A.S. Council has always maintained content rights.
However, the 1995 case of Rosenberger v. Rector and Visitors of the University of Virginia ruled that the use of public university student activity fees constituted a limited public forum, because student governments relied on “the power of the state to compel a student to pay.” As governmental bodies, student councils could regulate time, place and matter of distribution, but could not discriminate based on content, the Supreme Court ruled.
Regarding York and “Koala TV” being banned from the station, Goodman maintains that the A.S. Council lacks the legal right to determine who and what can be broadcast on the station.
“It’s ludicrous,” Goodman said. “There’s nothing stopping the A.S. Council from banning everyone who criticizes them, if they feel they have that right.”
For Park, however, prohibiting York and his constituents is a more straightforward matter.
“[A.S.] is entitled to create rules,” Park said. “Steve York intentionally broke those rules. There are consequences, and those were the consequences. It’s highly appropriate for [the council] to impose them.”
Even though campus counsel is advising the A.S. Council and is affiliated with the university administration, there is no conflict of interest, Park said.
“I have acted merely in an advisory role,” Park said. “All of the council’s decisions have been there own, so there are no clashing interests there.”
Calling the consequences a form of censorship, Earl Warren College senior Daniel Watts has filed a grievance with the campuswide judicial board after his program “Perfect Vision” was shut down Nov. 3.
“I think they shut it down because I was speaking out against [A.S. Vice President Finance] Greg Murphy and A.S.,” Watts said.
Both Watts and York have filed grievances against the council in the hopes of having the pornography ban declared a violation of the U.S. Constitution.
“I’m asking for a temporary stay to keep A.S. from interfering with the production of SRTV,” Watts said. “They unilaterally made these decisions without meeting with SRTV to amend their charter. They can’t do that.”
