[Kzyxtalk] Restoration of Safe Harbor at KZYX&Z

[Doug McKenty]

I also feel like, while the BoD of MCPB may choose to operate like a privately owned entity, the CPB is a "state actor" and this notion of "prior restraint" may effect, at least, the station's ability to use that grant. 

Doug

Sent from my iPhone

> On May 8, 2016, at 5:06 PM, <dennisobrien at sharejerusalem.com> <dennisobrien at sharejerusalem.com> wrote:
> 
> Thanks for the tip, Beth.  "Prior Restraint" is often used when analyzing the Free Speech protections of the First Amendment of the U.S. Constitution.  Alas, those protections only apply when a "state actor" is involved, i.e., the government at any level, like the FBI in the situation you describe.  However, the California Constitution provides even greater protections for free speech.  It was used in the Pruneyard case to require the private owners of a shopping center to allow petitioning and other free speech activity on private property.  So there may be a legal basis for a challenge in Superior Court if the Safe Harbor is not restored.  A publicly chartered membership nonprofit corporation that is a steward of the public airwaves should be even more subject to the law than private parties, yes?
> 
> Denny
> 
> --------------------------------------------
> On Fri, 5/6/16, nsi at mcn.org <nsi at mcn.org> wrote:
> 
> Subject: Re: [Kzyxtalk] Restoration of Safe Harbor at KZYX&Z
> To: dennisobrien at sharejerusalem.com, kzyxtalk at lists.mcn.org
> Cc: gm at kzyx.org, pd at kzyx.org, "Meadows UDJ" <udjkcm at pacific.net>, "Willits News" <editorial at willitsnews.com>, "Ft. Bragg Advocate-News" <advocatenews at mcn.org>, "Kzyx News" <news at kzyx.org>, "Bruce Anderson" <ava at pacific.net>
> Date: Friday, May 6, 2016, 1:02 PM
> 
> Thank you Dennis, for
> pursing this. This policy may also fall into the
> category of 'Prior Restraint'.
> 
>  Mary Aigner restrained Norman
> deVall from interviewing Laura Hamburg,
> days
> before the Measure B election that restricted Mendocino
> County
> residents from growing more than 6
> cannabis plants no matter their medical
> needs. (Until the California Supreme Court
> ruled elsewise shortly
> afterwards).
> Mary's  reason was  that  Laura was the organizer of
> the
> resistance to the Measure. That's
> how convoluted it got at KZYX after
> Aigner
> dug in.  Every First Amendment right was superceded by
> the
> restrictions imposed by the major grants
> that paid Aigner's salary for a
> position
> the station hardly needs.  
> 
> Early on in the station's history, during a
> period when I provided the
> only daytime
> public affairs programing on a 2 hr. weekly show called
> 4th
> GAte GAzette, I used the 'Prior
> Restraint' doctrine when the FBI sent 2 men
> to the Philo studio and told the General
> Manager KZYX could not broadcast
> any news
> reports about the bombing of Judi Bari's car that did
> not
> originate from the FBI news releases.
> 
>  A Notice was posted on the window re the
> prohibition (people from Oakland
> were
> regularly phoning in reports after Judi was bombed) the DJ
> at the
> console at the time called me and I
> told him it was an act of 'Prior
> Restraint' and to tear the notice down,
> throw it away and continue putting
> callers
> on the air.  He did and that was the end of the FBI's
> resistance to
> KZYX's coverage of the
> attempted assassination of this brave, local woman,
> leader of a Movement intent on keeping standing
> the last remaining 2% of
> California old
> growth redwoods, who after she was bombed was chained to
> a
> hospital bed, charged by the FBI and
> Oakland Police with carrying the bomb
> that
> was placed under her driver's seat set to blow her to
> slivers when she
> made the first sharp turn
> on her way back home from an organizing trip to
> California college
> campuses.   --beth bosk
> 
> On
> Fri, 6 May 2016 17:37:21 +0000 (UTC), <dennisobrien at sharejerusalem.com>
> wrote:
>> Lorraine and
> Raoul,
>> 
>> Thank you
> very much for putting time and energy into implementing
> KZYX's
>> Programming Policy,
> including the Program Advisory Committee (PAC). 
> This
>> letter is a formal
> request to restore the station's Safe Harbor hours
>> pending a review of the policy by the PAC
> and, perhaps, the Board of
> Directors.
>> 
>> In
> late 2015, just before her retirement, the former Program
> Director
>> announced the elimination of
> the "Safe Harbor" for free speech at the
>> station.  "Safe Harbor" is a
> period from 10:00pm to 6:00am when language
>> that might otherwise be considered profane
> can be used, in accordance
> with
>> Federal Communications Commission
> regulations.  Programmers will now
> lose
>> their positions if they either use such
> language themselves, play a
>> recording
> that uses it, or allow any caller, be they members or the
> general
>> public, to use
> such language.
> This change has a chilling effect on programmers, members,
> and the
> public.
> Allegations that programmers have allowed profanity on their
> shows have
>> been used to remove
> programmers whose shows encouraged dialogue with the
>> members and the community.  There are a
> lot of recordings - music,
> comedy,
>> commentary - in which one of the
> "seven words" can be found.  Our
>> programmers have been able to play them
> freely during Safe Harbor, and
> our
>> listeners have benefited.  That has all
> been changed.
>> 
>> A
> few days ago I was listening around 10:30pm when the song
> "Big Old Jet
>> Airliner" by
> Steve Miller came on.  There is a line about "funky
> shit
> going
>> down in the
> city."  The programmer had to turn the volume down and
> up at
>> that point.  I just sighed in
> disappointment.  If even a top 40 song has
> to
>> be bleeped, how are we
> ever going to hear recordings that are even less
>> restrained in their expression?  The
> late-night programmers will have to
> shelve half their material.  Will we never again hear
> George Carlin's
>> magnificent
> commentary?
>> 
>> I do
> not believe that the Program Director has the authority
> to
> eliminate
>> the Safe
> Harbor hours.  This is not just a day-to-day
> administrative
>> function.  Nor is it
> the hiring or firing of a programmer, or even the
>> selection of a genre or type of
> programming.  This is the elimination of
>> free speech during one-third of the hours
> of operation.  That is a
> policy
>> decision that cannot be made by any one
> person.  It requires extensive
> discussion and feedback from the members and the public. 
> This might be
>> accomplished by the PAC,
> but any decision to eliminate the Safe Harbor
>> would need to be confirmed by the Board of
> Directors, as it is a policy
>> decision,
> perhaps more than any other decision that a public
> community
>> radio station can make. 
> Indeed, it is so important that it should be
> put
>> to the members for a
> vote before our Safe Harbor for free speech is
> taken
>> away from us.
>> 
>> Some will question
> that approval by the members is necessary.  But I
> don't
>> think anyone can
> question that the former Program Director acted
>> arbitrarily and capriciously, placing her
> own morality and personal
>> preferences
> above any group process, excluding the public, the
> members
> and
>> even the
> programmers from the decision while creating an atmosphere
> of
>> oppression that has diminished
> creativity and promoted self-censorship. 
>> That is not the mission of public
> community radio in Mendocino County. 
> That is how totalitarian regimes operate.  KZYX is a
> steward of the
>> airwaves, not a
> dictator.
>> 
>> Please
> immediately restore the Safe Harbor pending a review of
> the
> policy
>> by the PAC
> and perhaps others.  You have the authority to do so.  It
> is
> in
>> the best
> interests of the station and the community, rather than
> an
>> projection of one persons
> restrictive morality.
>> 
>> Because this is a policy matter of great
> importance to the members and
> the
>> community, I am copying this request to
> the KZYXTalk email listserve and
>> other
> media.
>> 
>> Thank you
> very much for your time and attention, and for your efforts
> to
>> improve the governance at KZYX. 
> Please have faith in the members, the
> public, and our diversity of expression.  If pubic radio in
> Mendocino
>> County will not allow freedom
> of speech, then who will?
>> 
>> Sincerely,
>> 
>> Dennis O'Brien
> Member 
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