U.S. Drops KPFK Case Alleging Obscenity

Stepping into a heated controversy involving the nation’s broadcasters, the U.S. Department of Justice on Wednesday declined to prosecute Los Angeles radio station KPFK-FM for broadcasting allegedly indecent material when it aired excerpts of a play about homosexuality and AIDS.

The action came in response to a Federal Communications Commission decision to refer the broadcast by the Pacifica Foundation radio station to the Justice Department for possible criminal prosecution.

In April the commission toughened its stance on broadcast content and established controversial new enforcement standards for allegedly indecent programs that are broadcast “at a time of day when there is a reasonable risk that children are in the audience.”

The commission’s ruling expanded its definition of impermissible broadcasts. Previously, its indecency restrictions applied only to material broadcast before 10 p.m.

Aired After 10 P.M.

At issue in the case of KPFK-FM were broadcasts after 10 p.m. on Aug. 31 of excerpts of “The Jerker,” which includes explicit details of homosexual acts and numerous other references to sexual activities and excretory functions.

H. Robert Showers, executive director of the National Obscenity Enforcement Unit of the Justice Department’s criminal division, said FCC policies in effect at the time of the broadcast, which placed restrictions only on material broadcast before 10 p.m., “would preclude a successful prosecution.”

“It would be difficult to prove beyond a reasonable doubt that KPFK intended to commit a federal crime under the FCC’s previous policies on indecent and obscene broadcasts, even though the broadcast featured patently offensive material clearly in violation of community standards for broadcast media,” Showers said.

In a letter to Diane S. Killory, FCC general counsel, Showers said the FCC’s new policy “should enhance the possibility of greater enforcement and compliance in this area in the future.”

Hailed as Victory

Pacifica officials hailed the announcement as a victory, but only a small one.

“I’m still disturbed that the Justice Department and the FCC have not come to the conclusion that contemporary performance drama like ‘Jerker’ cannot be broadcast,” Pacifica Foundation President David Salniker said. “Not all of us can afford theater tickets for Broadway and off-Broadway shows. Not all of us can afford cable. We can’t all afford books by avant-garde authors.

“Pacifica is still not clearly free to broadcast constitutionally protected speech at an hour after 10 p.m. at night. We are still being censored. Too bad the Justice Department did not reach further and say that the broadcast of a play is constitutionally protected too.”

Atty. William J. Byrnes, who represents the foundation, noted that Justice Department officials “took some care in their announcement to raise an eyebrow in respect to future broadcasts under the FCC’s new standard.”

At the FCC, Richard Bozzelli, special assistant to Killory, said, “We’re not surprised because a decision to prosecute is obviously a judgment call.

“We did not recommend prosecution,” he said, adding that the FCC does not have authority to undertake such criminal actions. “We simply referred it to them (the Justice Department) for their consideration. We expected them to exercise their judgment.”

‘Supported Our Actions’

“I think it is good news in the sense that Justice has clearly supported our actions as a whole in the area of indecency,” he said.

The department’s ruling does not end the controversy involving the KPFK broadcast. Pacifica challenged the FCC’s new policy in federal court here in May, accusing the commission of “political harassment” and arguing that the policy violates the Federal Communications Act, which prohibits the agency “from engaging in censorship or interfering with the right of free speech by means of radio communications.”

A number of other groups have filed petitions asking the commission to reconsider its ruling. Bozzelli said the commission is reviewing the petitions and will make a decision “in the not too distant future.”

Intended as Review

Pacifica officials have maintained that the late-night program cited by the FCC was specifically targeted for homosexual listeners and was intended as a critical review of a play that was on stage in Los Angeles at the time.

“It’s wonderful, but it’s not surprising,” said Carol Sobel, the Los Angeles American Civil Liberties Union attorney assigned to defend the radio station, of Wednesday’s announcement. “Pacifica has maintained from the beginning that this was a piece of literature which was aimed at educating everybody in the community about the AIDS problem. It was clearly protected speech and even more than it’s not being obscene, in the long run I think the courts are going to find that it was not indecent either.”

Penny Pagano reported from Washington and Dennis McDougal from Los Angeles.