CENSURING THE CENSOR
Nearly two years after Denver Community Television (DCTV) refused to air one of his gay-themed programs, videographer Tony Palange has won a major court victory. In late August district court judge Richard Spriggs ruled that DCTV and the City and County of Denver improperly engaged in censorship.
To David Miller, legal director of the American Civil Liberties Union of Colorado and the attorney who represented Palange in his lawsuit against Denver and DCTV, the decision's importance could reach far beyond the matters of the case. "It's the first time in Colorado that the courts have addressed the issue of whether nominally private cablecasters operating under an agreement with a city will be looked at as performing state actions," he says. "If the city and DCTV decide to appeal and make some appellate law, it could set a precedent."
In Palange's mind, the judgment is much simpler. "I'm relieved," he says. "And I knew I was right."
The genesis of the dispute dates back to May 1992, when Palange presented DCTV with an original program called Jungle Fantasy ("Viewer Discretion Advised," January 27, 1993). Like most of Palange's productions, the show dealt with gay themes in an explicit and controversial manner; sequences included shots of male denizens of leather bars engaging in simulated oral sex. In spite of these images, DCTV played Jungle Fantasy three times that July. But when Palange used provocative excerpts from the piece as an introduction to G/L Magazine, a talk show he also produced, DCTV declared the result obscene and refused to schedule it for broadcast. Palange responded by contacting the ACLU, which offered to initiate legal action against DCTV and the City and County of Denver on his behalf. While the subsequent lawsuit was winding its way through the courts, DCTV twice showed G/L Magazine in conjunction with a request for viewers to phone special numbers and state whether or not they felt the effort was obscene ("The Show Must Go On," November 17, 1993). Rather than feeling placated by this move, Palange was outraged, calling the poll "a video lynching."
When the combatants finally met in court in May 1994, attorney Alice DeStigter, representing DCTV, and Andrew Weber, a city attorney for Denver, argued that DCTV was a private entity that was not supported by taxpayer dollars; they noted that the channel's budget is paid by Mile High Cablevision as required by the company's franchise contract with the city. In his decision, Judge Spriggs disagreed with this interpretation, noting that the city participates in the management of the channel by approving and copyrighting DCTV's management procedures and okaying any policy or procedural changes. Moreover, Spriggs wrote, the city approves DCTV's annual budget and conducts on-site monitoring, making it more than a mere regulatory supervisor.
According to Spriggs's ruling, the linkage between DCTV and the city meant that the cable channel should have consulted the courts in order to determine if G/L Magazine was obscene instead of coming to that conclusion independently. Spriggs said the procedures DCTV followed in reaching this determination amounted to censorship and constituted a form of prior restraint even though the channel's representatives may have been acting in the good-faith belief that the program was obscene. After measuring G/L Magazine against state and federal standards, Spriggs ruled that the production was not legally obscene and chastised DCTV for breaching its written contract with Palange by imposing "editorial changes as a condition for cablecasting." In addition, Spriggs said that DCTV was also culpable for limiting access to Palange's programs on All Request Community TV, another channel managed by DCTV, to the hours between midnight and 5 a.m.--the first time any such restrictions had been imposed on a DCTV producer.
Spriggs set a February 21, 1995, date for a second trial to determine damages. The city's Weber acknowledges that settling the case before it goes to trial is a possibility, but he says he is unaware of any attempts to reach such an agreement; otherwise, he declines comment because "the matter is still in litigation." Attorney DeStigter, speaking for DCTV, responds similarly: "The case is ongoing, and we don't feel comfortable talking at this time."
For his part, the ACLU's Miller says, "We've not asked for a set amount [of damages]. It will be whatever a jury imposes based on DCTV's censorship and the effect of that on Tony. And he'll testify to the emotional pain and suffering and the problems this conflict has created." He adds, "I do think this has been unfortunate, because DCTV in general has spoken in the past for freedom of speech. In a sense, the good people are fighting against other good people."
Miller dismisses the suggestion that Palange's lawsuit could undermine DCTV, which has been attacked by city councilman Ted Hackworth as a waste of taxpayer money and a purveyor of programming of questionable value. "DCTV people claim they're going to go bankrupt over cases like this," Miller says. "But that's an absurd idea. Obviously, somebody has to answer when a wrong decision is made--someone needs to have their butt on the line. And in this case, DCTV seems to have made a very wrong decision, and they're going to have to pay for it. You can't blame Tony for that."
In spite of the possibility of a monetary settlement, Palange remains angry at DCTV. He claims that representatives of the channel made it difficult for him to work there during the litigation and then charged him with breaking his contract with them when he failed to deliver two promised programs. "And I'm disappointed that the other gay producers there haven't gotten behind us," he says. "Because I did this for all of them.
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