Petition for Writ of Certiorari — Huffman v. Michigan (No. 05-1449)

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051449 may 1 2 2006

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

TIMOTHY B. HUFFMAN,

Petitioner,

THE PEOPLE OF THE STATE OF MICHIGAN,

Respondent.

On Petition for a Writ of Certiorari to the

Michigan Court of Appeals

PETITION FOR WRIT OF CERTIORARI

KATHERINE A. FALLOW

Counsel of Record

WILLIAM M. HOHENGARTEN

Scott B. WILKENS

LUKE C. PLATZER

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.

Washington, DC 20005

(202) 639-6000

Counsel for Petitioner

May 12, 2006

QUESTIONS PRESENTED

1. Whether Petitioner’s conviction under Michigan’s

“open or indecent exposure” law for arranging for the

transmission of a cable television program containing nudity

deemed “offensive” violates the First Amendment?

2. Whether the Michigan Court of Appeals’

unprecedented and unforeseeable application of a public

indecency statute to Petitioner’s televised nudity violates the

fair warning requirement embodied in the Due Process

Clause of the Fourteenth Amendment?

i i i el ——

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all parties

to the proceeding in the court whose judgment is sought to be

reviewed.

iil

TABLE OF CONTENTS

Page

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TA ERR R CO CRUE CIE es vacnsieitsnrasvsscenincensevnnseqecoennrqaas |

A. Petitioner’s Television Program And Arrest.............. ]

Bes OID TIE viiincicsnscsnicitsvsnisosienenennintesanticaonnseh 3

REASONS FOR GRANTING THE WRIT ............ccceseseeeees 7

I. This Case Presents Critical Questions Concerning

The Government’s Authority To Criminalize Images

Of Nudity On Cable Television................c.csesscceseeseeeeees 11

A. This Court Should Clarify That The O’Brien

Rationale Cannot Be Applied To Representations

Of Nudity That Are Merely “Offensive.” ................ 11

B. The Decision Below Perpetuates Confusion

About The Level Of Scrutiny Applicable To

Indecent Cable Programming. ...............::ccsccessceeseeees 17

C. Application Of State Public Nudity Statutes To

Cable Programming Will Have Sweeping Effect.....21

Ii. Alternatively, The Court Should Summarily Reverse

On Due.Process Grounds Because The Law Did Not

Give “Fair Warning” That It Could Be Applied In

I ics Slenleasicosedsicchiahihaadeiaikccahaententeasdabelomilaioiomadadeaie 23

Se asa aN icici die voi shi sninphes bib ditdidecanicianbultenatanneasieed 29

Appendix A

Order, People v. Huffman, 474 Mich. 999, 708

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Appendix B

Opinion, People v. Huffman, 266 Mich. App. 354,

Fe Phe OF nS Scere tticerenivcinisintidsaninedicciniinaniadionms 2a

Appendix C

Opinion, People v. Huffman, Case No. 01-11061-AR

(Mich. Cir. Ct. Kent County Nov. 3, 2003)..............00 19a

Appendix D

Bench Ruling Denying Interlocutory Appeal, People

v. Huffman, Case No. 01-11061-AR (Mich. Cir. Ct.

Bent County Avr. SO, 2002) ssscnsiccenesssoscssoaiosoameapnccccstes Sla

Appendix E

Opinion Denying Motion to Dismiss, People v.

Huffman, Case No. 2000-SM-1326 (Mich. Dist. Ct.

PE EF BOOT Bovis ntinsicndiscapanbedsdlakieedvinnlinastabaaiaeiad 6la

Appendix F

Constitutional and Statutory Provisions Involved........ 72a

TABLE OF AUTHORITIES

CASES

Ashcroft v. ACLU, 542 U.S. 656 (2004).........:ccssessessseeees 21

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ......... 23

Barnes vy. Glen Theatre, Inc., 501 U.S. 560

CRE I sc ccbicinissinicanciaucpeananiasniniavain 8, 12,713, 14, 15, 16

Boos v. Barry, 485 U.S. 312 (1988)...........cccssssssesesereesees 16

Bouie v. City of Columbia, 378 U.S. 347 (1964) .. 10, 23, 26

Carey v. Population Services, International, 431

SR TE EE i iociccsveaninnsicneiiinstnitigetidinnninnninion 11

City of Erie v. Pap’s AM, 529 U.S. 277

GE anincedinhiscisajuctincstinicnnnessieebiiebautene 8, 12, 13, 14, 16

City of Los Angeles v. Alameda Books, Inc., 535

Se Re EE iikhiisnss Chascisnagisthptincaintatnebtiensiniiians 16, 17

Community Television of Utah, Inc. yv. Roy City,

352 F. Supp. 1164 (D. Utah 1982) ........ccsccocesssssssnsssees 19

Community Television of Utah, Inc. v. Wilkinson,

611 F. Supp. 1099 (D. Utah 1985), affd sub

nom. Jones v. Wilkinson, 800 F.2d 989 (10th

Cir. 1986), aff'd, 480 U.S. 926 (1987) ......... ee eeeeeeeees 19

Cohen v. California, 403 U.S. 15 (1971) ou... cceeeeeeeeee 7, 1i

Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985)................. 19

Denver Area Educational Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727

ESI iceihcnccdbintiniheaticinsssenndinsonanie 17, 18, 19, 20-21, 22, 27

Douglas v. Buder, 412 U.S. 430 (1973).........cccccesceeeees 26, 28

Erznoznick v. City of Jacksonville, 422 U.S. 205

FCC v. Pacifica Foundation, 438 U.S. 726

CREED ickitiicicesipniicitciencicacienunnansaseaamenibabiashiinies 9, 11, 20, 21

Hope v. Pelzer, 536 U.S. 730 (2002) .........scsccesscessssseeeees 24

Jenkins v. Georgia, 418 U.S. 153 (1972)........cscesseeseeeee 14

Lanier v. South Carolina, 474 U.S. 25 (1985) .........c.ss00e 28

Lawrence v. Texas, 539 U.S. 558 (2003)...........::csscseeeeeeee 17

Lewis v. United States, 518 U.S. 322 (1996)............04 22-23

Marks v. United States, 430 U.S. 188 (1977).............. 26, 28

Miller v. Civil City of South Bend, 904 F.2d 1081

(7th Cir. 1990), rev'd sub nom. Barnes v. Glen

FONTS, TIE. Fat WS. SG CID vnseasctovssvaiitvntinsrass 22

Payne v. Virginia, 468 U.S. 1062 (1984)... ecceeeeeeee 28

People v. De Vine, 261 N.W. 101 (Mich. 1935)............... 25

People v. Katz, 203 N.W. 114 (Mich. 1925).............00 25

People v. Ring, 255 N.W. 373 (Mich. 1934)...........ssesseee 25

People v. Vronko, 579 N.W.2d 138 (Mich. Ct. App.

Piiscaistabsibiisscvabisdads-cabiaiiahibeibesmcanaiesns naaninanmamupanians 25

People v. Wilson, 291 N.W.2d 73 (Mich. Ct. App.

Se eiaissicisatthnascasiassshs abou edusticessiocte onsets decennial 25

Rabe v. Washington, 405 U.S. 313 (1972)............ 26, 27, 28

Reno v. ACLU, 521 U.S. 844 (1997)......... 11, 20, 21, 22, 27

Rose v. Locke, 423 U.S. 48 (1975)........:.cccccesseeeees 24, 25, 28

Sable Communications of California, Inc. v. FCC,

OE Seis Ee 00 iin rinsssecsnipcinacinsaalnainnsoaniniaaniiie 20

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

RAS sascieiciicc cs Lactiphinknnickcabiaaaisteanekdanshon anak Rinabiasauaeaienstabnitin 15

Vii

Turner Broadcasting System, Inc. v. FCC, 512 U.S.

ID sii isinitcendkctediniieeaevwenuahdielinssitmmsiebnininemeennancucies 18

United States v. Lanier, 520 U.S. 259 (1997)............. 10, 24

United States v. O’Brien, 391 U.S. 367 (1968)............00. 12

United States v. Playboy Entertainment Group,

BO. , BED 2S TD LAD orevisnisnsnsessoviss 9, 11, 14, 16, 17,

19, 20, 21, 27

BETO HD, FFT IS. SSE UST) ons csesvescissenscoovescesnsicinn 22

STATUTES

SN CANIN © BINT ee vaiksscpesninnieninriccivervcncncassinseenine 23

Mich. Comp. Laws § 750.335a (2000)...............00008 3, 12,43

Mich. Comp. Laws § 750.335a (2006)...........:.csceeeee 21, 23

Pe. SAND, MPU FIR IS vse cancscscndesetccesvesssusescaiesbentonss 11

MISCELLANEOUS

The Compact Oxford English Dictionary (2d ed.

SP bast iehchcabesieisaseleesiicaseaivanisvssbaksiaccekn Viesbiaden bass ceitee cuales 26

David Minneman, What Constitutes “Public

Place” Within Meaning of State Statute or

Local Ordinance Prohibiting Indecency or

Commission of Sexual Act in Public Place, 95

Fae a ENO Pisces sinsshisp cuabinbtisinitinnaeccteecnkannalannke 24

Robert L. Stern, et al., Supreme Court Practice (8th

5 ___ + RRR IRSA Ptr et Sal ancien PEM eee Re RRO CG 28

OPINIONS BELOW

The Michigan Supreme Court’s order denying leave to

appeal is reported at 708 N.W.2d 95. Pet. App. la. The

opinion of the Michigan Court of Appeals affirming

Petitioner’s conviction is reported at 702 N.W.2d 621. Pet.

App. 2a-18a. The Kent County Circuit Court’s opinions

affirming Petitioner’s conviction and denying Petitioner’s

interlocutory appeal are unreported. Pet. App. 19a-60a. The

trial court opinion denying Petitioner’s motion to dismiss is

unreported. Pet. App. 61a-7 la.

JURISDICTION

The Michigan Court of Appeals entered its judgment on

May 10, 2005. The Michigan Supreme Court denied a

timely petition for leave to appeal on January 12, 2006, with

two Justices dissenting. On March 29, 2006, Justice Stevens

granted Petitioner’s application for a 30-day extension of the

time to file a petition for writ of certiorari. This Court’s

jurisdiction rests on 28 U.S.C. § 1257.

STATUTES INVOLVED

This case involves application of the First Amendment,

the Due Process Clause of the Fourteenth Amendment, and

Michigan Penal Code § 335a. The pertinent provisions are

reproduced at Pet. App. 72a-73a.

STATEMENT OF THE CASE

A. Petitioner’s Television Program And Arrest

Petitioner Timothy Huffman was convicted under

Michigan’s public indecency statute for the broadcast of a

television program over GRTV, a public access cable

channel in Grand Rapids, Michigan. Pet. App. 4a.

Petitioner’s show, called “Tim’s Area of Control,” is

regularly shown on GRTV. At issue here is the sixty-eighth

episode shown on March 31, 2000, and April 7, 2000. Pet.

App. 3a. In accordance with GRTV rules restricting adult

content to nighttime hours, Petitioner directed GRTV to

show the program only after 10:00 p.m., and the episodes

were televised between 10:30 p.m. and 11:00 p.m. See

GRTV Application for Cablecast & Statement of Compliance

for Episode 68 (Mar. 30, 2000), marked as People’s Trial Ex.

1; see also Trial Tr. at 47-48; Pet. App. 3a. The half-hour

episode featured a number of music and comedy acts, as well

as a public service announcement. See Summary of “Episode

68” of “Tim’s Zone of Control,” Ex. B to Defendant-

Appellant’s Application For Leave to Appeal, Docket No.

252315 (Mich. Ct. App. filed Nov. 24, 2003). Petitioner’s

conviction stems from a three-minute segment near the end

of the program. The segment, a short comedy skit, shows “‘a

flaccid penis and testicles marked with facial features,”

playing the role of “Dick Smart,” a comedian performing an

act at a comedy club without much success. Pet. App. 3a.

The “Dick Smart” character makes a series of comedic

double entendres, noting for example that he had been in the

Army -prior to becoming a comedian but that he mostly “just

hung around” instead of working. Pet. App. 3a & n.l.

Although perhaps crass, the routine is not sexual — there is no

hint of eroticism in either the images displayed or the

accompanying monologue. It is simply a comedy act

depicting the travails of a humanized set of genitals

attempting, and failing at, stand-up comedy.

GRTV received a single complaint about Petitioner’s

program from an adult viewer who testified at trial that she

“stopped for a second, just to make sure I was seeing what |

was actually seeing, and I watched it for at least a minute.”

Trial Tr. at 24. There is no indication that any child ever

viewed Petitioner’s program, which was televised at 10:30

p.m. The Grand Rapids Police Department executed a search

warrant on Petitioner’s home, where they seized a tape

containing the episode triggering the complaint. Pet. App.

4a.' Petitioner voluntarily submitted to arrest, and was

charged with violation of Michigan’s “open or indecent

exposure” statute, providing that “[aJny person who shall

knowingly make any open or indecent exposure of his or her

person or of the person of another shali be guilty of a

misdemeanor... .” Mich. Comp. Laws § 750.335a (2000).

B. Proceedings Below

In the trial court Petitioner moved to dismiss the

prosecution on the ground that he could not be held

criminally liable under § 750.335a for broadcasting nudity on

cable television. Pet. App. 20a. After the motion was

denied, Petitioner filed an interlocutory appeal in the Circuit

Court for Kent County, Michigan. Pet. App. 21a. That

appeal was denied, and following a jury trial, Petitioner was

convicted on January 7, 2003. Pet. App. 22a. Petitioner was

sentenced to one day in jail, with credit for time served, and

twelve months of probation. He was also fined $500 and

ordered to pay an additional $525 in costs. Pet. App. 4a.

Petitioner appealed his conviction to the Circuit Court on —

the grounds that the indecent exposure statute does not apply

to televised images and that if it does, the statute violates the

First and Fourteenth Amendments. On November 3, 2003,

the Circuit Court rejected Petitioner’s constitutional claims

and affirmed his conviction. Pet. App. 19a-50a.”

' The first magistrate to consider the warrant request denied it, stating that

while he understood that Petitioner had broadcast nude images over cable

television, he was “not sure what the crime is” and that “I don’t know if

it’s a criminal act. That’s the problem I have.” Denial of Search Warrant

Before Magistrate Judge Fred D. Hartley, at 4-5 (Mich. Dist. Ct. April 28,

2000). The police then obtained a warrani from a different judge, based

on a potential charge under the state’s “open or indecent exposure” law.

Search Warrant (Mich. Dist. Ct. issued April 28, 2000).

? The Circuit Court held as an initial matter that Petitioner was precluded

by the “law of the case” doctrine from raising issues that had been

Petitioner subsequently appealed to the Michigan Court

of Appeals, which affirmed his conviction in a written

opinion issued May 10, 2005. Framing the question before it

as “whether televising an image of a naked penis is an ‘open

or indecent exposure’ under the language of the statute,” the

court answered in the affirmative. Pet. App. 5a. The court

observed that previous cases defined “open exposure” as

““any conduct consisting of a display of any part of the

human anatomy under circumstances which create a

substantial risk that someone might be offended.” /d.

(quoting People v. Vronko, 579 N.W.2d 138, 142 (Mich. Ct.

App. 1998) (internal quotation omitted)). The Court of

Appeals stated: “Similarly here, we conclude that the

purposes of the indecent exposure statute are best fulfilled by

focusing on the impact that offensive conduct might have on

persons subject to an exposure.” Pet. App. 6a.

While conceding that “application of this statute or,

indeed, any indecent exposure statute, to television or film

images is unprecedented,” the court stressed Petitioner’s

failure to identify any “authority holding that the language of

this statute, or any similar statute, does not encompass

televised images.” Pet. App. Sa. According to the court, the

“exposure” for which Petitioner was convicted occurred not

when Petitioner made the film, but rather when Petitioner

“arranged for the [film’s] delivery to GRTV” for the purpose

decided by the same court in Petitioner's earlier interlocutory appeal.

The Circuit Court also addressed and disposed of Petitioner’s

constitutional claims on the merits, however. Before the Michigan Court

of Appeals, the state conceded that the law of the case in the Circuit

Court did not bar higher appellate courts from considering the merits of

Petitioner’s constitutional claims and reaching a different result.

Plaintiff-Appellee’s Brief in Opposition to Application for Leave to

Appeal, Docket No. 252315, at 3 (Mich. Ct. App. filed Dec. 15, 2003).

Thus, when the Court of Appeals granted leave to appeal, it addressed the

merits of Petitioner's constitutional claims without reference to the law of

the case in the Circuit Court.

of having it broadcast on cable television. Pet. App. 8a. In

the court’s view, Petitioner “should have expected, or in fact

did expect, that someone would observe the Dick Smart

segment and be offended by it.” Pet. App. 6a-7a. Although

the court agreed that a televised image is “qualitatively

different than a physical exposure,” the court speculated that

a televised image can be more “offensive and threatening”

than nudity in a public square. Pet. App. 6a. Thus, the court

saw “no reason to read into the statute a limitation that would

prevent its application to [Petitioner’s] televised and,

therefore, powerfully effective exposure.” Pet. App. 7a

Turning to Petitioner’s First Amendment claim, the court

applied intermediate scrutiny under United States v. O’Brien,

391 U.S. 367 (1968), observing that this Court had twice

applied O’Brien in what the Court of Appeals viewed as an

indistinguishable context: nude dancing. Pet. App. 8a-9a

(citing Barnes v. Glen Theatre, Inc., 501 U.S. 560 (199i),

and City of Erie v. Pap’s AM, 529 U.S. 277 (2000)). The

court thus approached the case as one involving the

regulation of conduct — even though the offense for which

Petitioner was convicted was the transmission of a cable

television program. The court rejected Petitioner’s argument

that his conviction should be reviewed under the stringent

scrutiny applied to restrictions on cable programming in

United States v. Playboy Entertainment Group, Inc., 529

U.S. 803 (2000), and Denver Area Educational

Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727

(1996). Positing that “a majority of the Supreme Court” has

held that public nudity statutes are to be evaluated

categorically under the O’Brien framework, the court

concluded that Playboy and Denver Area, “which involve

content-specific restrictions on speech itself, are simply

* The court acknowledged that when Petitioner made the film, “no one

allegedly observed the taping or took offense because of it.” Pet. App. 8a.

inapposite to the question presented in this appeal.” Pet.

App. 14a. The court also relied on FCC v. Pacifica

Foundation, 438 U.S. 726, 748 (1978), for the proposition

that broadcasting has “the most limited First Amendment

protection,” and held that Pacifica applied with full force to

cable programming such as Petitioner’s. Pet. App. 14a.

“[D]iscern[ing] no difference between the Indiana public

nudity statute in Barnes and the Michigan indecent exposure

statute at issue here,” the Court of Appeals concluded that the

State’s interest in protecting “morals and public order” was

within the constitutional power of the state, furthered

subsiantial government interests unrelated to restrictions on

freedom of expression, and restricted Petitioner’s speech no

more than was necessary in order to further those,

government interests. Pet. App. 10a-13a. The court rejected

Petitioner’s argument, based on Pap’s, that no “secondary

effects” justified application of Michigan’s indecent exposure

Statute to Petitioner’s cablecast. The court concluded that the

State need not show “secondary effects” to justify a

restriction on Petitioner’s expression, reasoning _ that

“promotion ef public morality through the prohibition of

indecent exposure is a sufficient governmental interest to

satisfy the second part of the O'Brien test.” Pet. App. 13a.

Having determined that Petitioner’s conviction did not

offend the First Amendment, the court also rejected

Petitioner’s due process argument that the indecent exposure

statute failed to give him fair warning that his conduct was

proscribed. Pet. App. 1Sa-16a. The court relied on its earlier

reasoning that televised images fall within the scope of the

indecent exposure statute, explaining that the terms of the

statute are not limited to circumstances where the “exposing

person and the victims subject to the exposure are physically

in the same place.” Pet. App. 16a. Having found that the

Petitioner “intended to maximize the impact of his open or

indecent exposure by using the cable medium,” the court saw

“no reason to conclude that he was not fairly on notice that a

criminal charge or conviction could result.” Jd.

Petitioner subsequently appealed to the Michigan

Supreme Court, which denied review on January 12, 2006.

Pet. App. la. Two justices would have granted review. /d.

REASONS FOR GRANTING THE WRIT

“This case may seem at first blush too inconsequential to

find its way into [the Court’s] books, but the issue it presents

is of no small significance.” Cohen v. California, 403 U.S.

15, 15 (1971). That Petitioner’s program might be offensive

to some does not make it any less deserving of First

Amendment protection, or his conviction less worthy of this

Court’s review. If anything, the need for review is greater

here. Even if Petitioner’s cable segment was of questionable

taste, the constitutional values at stake in this case are

paramount. “We cannot lose sight of the fact that, in what

otherwise might seem a trifling and annoying instance of

individual distasteful abuse of a privilege, [the] fundamental

societal values [embodied in the First Amendment] are truly

implicated.” /d. at 25.

At bottom, the court below held that the creator of a cable

"program can be criminally punished under a public nudity

law if a single viewer could find the transmission morally

“offensive.” That ultimate holding unquestionably clashes

with our most basic First Amendment values. But while the

result is clearly erroneous, the Michigan court’s reasoning

reflects confusion resulting from the intersection of muitiple

lines of this Court’s precedents. Some of the steps in the

state court’s reasoning directly conflict with recent decisions

of this Court. But other steps, although misguided, find at

least superficial justification in some of this Court’s cases.

Thus, either summary reversal or plenary merits review

under the First Amendment would be appropriate here. In

either event, however, this Court’s intervention and guidance

is urgently needed in light of the sweeping chilling effect of

the criminal sanctions imposed in this case.

One important First Amendment question presented here

arises from the Michigan Court of Appeals’ unprecedented

application of this Court’s nude dancing decisions in Barnes

v. Glen Theatre, Inc., 501 U.S. 560 (1991), and City of Erie

v. Pap’s AM, 529 U.S. 277 (2000), to the core First

Amendment expression at issue in this case. Equating the

visual representation of nudity in the cablecast here with the

physical public nudity at issue in Barnes and Pap’s, the state

court held that Petitioner’s cable program was conduct, not

speech, and was therefore subject to review under the so-

called O'Brien standard. The court also reasoned that

O'Brien applies because Michigan’s public nudity law is a

content-neutral regulation on its face — even though here the

law has been applied to criminalize pure speech merely

because a single viewer found it “offensive.” And in

applying O'Brien, the Michigan court held that application of

the law in this way could be justified on the ground that it

maintains public “morality” by banning “offensive”

depictions of nudity — despite the absence of “secondary

effects.” Under this chain of reasoning visual depictions of

nudity are deprived of all First Amendment protection

traditionally accorded by this Court, and instead may be

criminalized solely because a viewer might be offended.

Although that result is plainly wrong, it cannot be gainsaid

that the lower court’s reasoning finds some superficial

foothold in the nude dancing decisions. Review by this

Court is necessary to cabin those decisions and make clear

that they cannot be transposed from physical nudity in public

to visual representations of nudity like that involved here.

A second important First Amendment question presented

is the proper level of scrutiny to be applied to allegedly

“indecent” or “offensive” cable programming. The Court has

struggled with this question, at times likening televised

cablecasts to broadcasts, and at other times noting important

differences between the two media. Most recently, however,

the Court unambiguously held that strict scrutiny applies to

regulation of indecent cable programming. United States v.

Playboy Entm't Group, 529 U.S. 803 (2000). But the

Michigan Court of Appeals refused to follow Playboy,

holding instead that cable is subject to the lower level of First

Amendment protection applied to broadcast television in

FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which

upheld the FCC’s authority to regulate the times during

which indecent broadcasts could be aired in order to protect

children. Further, the court below went far beyond Pacifica

itself by upholding a criminal sanction for programming that

was cablecast during the FCC’s “safe-harbor” hours and was

not shown to have been viewed by any child. The Michigan

court’s refusal to apply strict scrutiny reflects lingering

uncertainty concerning the protection afforded cable

programming in light of this Court’s long struggle with the

issue, and plenary review of this question would afford the

Court an opportunity to provide much-needed additional

guidance to the lower courts. In light of the direct conflict

with Playboy, however, the needed guidance could also be

provided by a per curiam opinion summarily reversing on

this basis. In either event, the decision below cannot be

allowed to stand.

The completely unprecedented nature of Petitioner’s

criminal prosecution means, of course, that there is no

conflict among the lower couris in the precise circumstances

here. But in light of the fundamental First Amendment

values at stake, and the chilling effect of the sweeping

reasoning in the decision below, immediate review by this

Court is urgently needed. The standard of review applicable

to laws that purport to criminalize cable programming is an

issue of broad importance. Even more critical is the

criminalization of core First Amendment speech under the

Court of Appeals’ application of O’Brien. That reasoning

would apply with equal force to every published visual

depiction of nudity — Schindler’s List being but one

prominent example — whether on broadcast television, cable,

movies, video, or even photographs. And since most or all

Jurisdictions have public nudity laws, this subversion of core

First Amendment principles could have widespread

application. Even in the absence of additional prosecutions,

the decision below is certain to have a substantial chilling

effect on protected expression containing depictions of

nudity that some viewers could find offensive.

Alternatively, the Court should summarily reverse the

decision below as directly contrary to the fair-warning

requirement embodied in the Due Process Clause of the

Fourteenth Amendment, which prohibits the States from

imposing criminal sanctions for conduct that one could not

reasonably understand to be proscribed. E.g., Bouie v. City

of Columbia, 378 U.S. 347, 350-51 (1964); United States v.

Lanier, 520 U.S. 259, 270-71 (1997) (to give fair warning,

criminal proscription must be “clearly established”). The

Michigan Court of Appeals violated this principle by

applying a novel construction of Michigan’s indecent

exposure statute to conduct that neither the statute nor any

prior judicial decision fairly disclosed to be within the

statute’s scope. No court in the country had ever applied an

indecent exposure statute to televised nudity, and the

Michigan courts had always interpreted that state’s indecent

exposure law to apply only to exposures occurring in a public

place. Furthermore, this Court has repeatedly struck down

restrictions on indecent cable television programming. No

reasonable person could have foreseen that televised nudity

would be criminalized under Michigan’s indecent exposure

statute. Petitioner’s conviction must be reversed.

I. This Case Presents Critical Questions Concerning

The Government’s Authority To Criminalize Images

Of Nudity On Cable Television.

Michigan’s unprecedented application of its “open or

indecent exposure” law to cable television content raises a

substantial question of First Amendment law: whether, by

equating transmission of cable programming with physically

appearing in a public square, a State can evade the scrutiny

imposed by this Court’s precedents on the regulation of

indecent cable television content. If the Michigan court’s

reasoning were accepted, the careful balance this Court has

struck in its media content cases would mean very little, and

an entire category of expression — programs containing

nudity — would be subject to criminal sanctions whenever

someone finds them “offensive.”

A. This Court Should Clarify That The O’Brien

Rationale Cannot Be Applied To Representations

Of Nudity That Are Merely “Offensive.”

The Court has consistently held that the “indecent” or

“offensive” nature of speech does not remove it from the

protection of the First Amendment. ‘“‘Sexual expression

which is indecent but not obscene is protected by the First

Amendment.’”” Reno v. ACLU, 521 U.S. 844, 874-75 (1997)

(quoting Sable Commce’ns of Cal., Inc. v. FCC, 492 U.S. 115,

126 (1989)); see also Playboy, 529 U.S. at 811-12 (sexually

explicit cable programming “is protected speech”). Where

obscenity is not involved, the fact that speech may be

offensive to some does not justify its suppression. Carey v.

Population Servs., Int'l, 431 U.S. 678, 701 (1977); see also

Cohen, 403 U.S. at 22-23; Pacifica, 438 U.S. at 745.*

* The State of Michigan has never contended that Petitioners’ program

was obscene and the State made no attempt to prosecute Petitioner

pursuant to Michigan’s obscenity statute, Mich. Comp. Laws § 752.365.

In this case, however, the Michigan Court of Appeals

held that Petitioner could be criminally punished for an

“offensive” cable transmission on the ground that Petitioner

was convicted for “conduct” rather than speech. Pet. App.

6a-7a, 13a-14a. The Court of Appeals analyzed Petitioner’s

conviction under this Court’s line of decisions governing

situations where the enforcement of a rule unrelated to

expression has the incidental effect of preventing a person

from engaging in behavior which is not inherently

expressive, but which the person may intend as expressive in

specific contexts. See O’Brien, 391 U.S. 367 (general rule

barring destruction of draft cards applied to burning of draft

card as symbolic protest); Barnes, 501 U.S. 560 (general rule

barring public nudity applied to dancing in the nude to

enhance erotic message of dance); Pap’s, 529 U.S. 277

(same).

The Michigan court’s rationale that nudity in a cable

program can somehow be separated from the “content” of

that speech is fundamentally at odds with basic First

Amendment principles. The court’s approach, although

erroneous, finds superficial justification in statements in

Barnes and Pap’s concerning the application of a generaily

applicable public nudity statute to nude dancing. This Court

has struggled with how to characterize nude dancing for First

Amendment purposes, and no position has garnered a clear

majority. The Court should grant review to make clear that

at the very least, Barnes and Pap’s are limited to actual

conduct in public, and cannot be extended to representations

of nudity — whether on cable, on broadcast television, in

films, or in photographs.

Petitioner was not convicted for the act of being nude or

appearing nude in a public place. Neither private nudity nor

the filming thereof is illegal under Mich. Comp. Laws

§ 750.335a (2000). Pet. App. 8a (noting that the “taping did

not constitute the ‘exposure’” for which defendant was

convicted; the criminal offense was causing the tape to be

delivered for broadcast). Petitioner was convicted rather for

causing his comedy skit to be shown on cable television. In

other words, Petitioner was convicted for the content of his

cable television program — an inherently expressive medium.

His filming, producing, and acting in a non-obscene comedy

skit that contained nudity would not have been illegal but for

its having been shown on cable television.”

The Michigan Court of Appeals nevertheless concluded

that Petitioner’s conviction was subject to intermediate

scrutiny under O’Brien because “defendant would have been

properly subject to conviction for indecent exposure had he

staged the Dick Smart segment in a traditional public square.

He becomes entitled to no greater First Amendment

protection, and cannot inoculate himself against criminal

liability, by channeling his exposure through a cable

television network.” Pet. App. 14a.

The state court’s mistaken leap of logic was fueled in part

by the confusion stemming from this Court’s nude dancing

cases. The Michigan court relied on Barnes for the

proposition that Petitioner was convicted for the act of being

nude, not engaging in expression containing nudity. In

Barnes, the plurality reasoned that “[p]Jublic nudity is the evil

the State seeks to prevent, whether or not it is combined with

expressive activity.” 501 U.S. at 571 (plurality); see also

Pap’s, 529 U.S. at 301 (“The ordinance regulates conduct,

and any incidental impact on the expressive element of nude

* Petitioner’s conviction did not depend upon whether he exposed his

own genitals; he would have been equally guilty of violating the statute if

the nude images featured in his program had exposed “the person of

another.” Mich. Comp. Laws § 730.335a (2000). The jury was in fact

instructed that it could also convict Petitioner if the cable program at

issue exposed the genitals “of another.” Trial Tr. at 145-46.

dancing is de minimis”). Following this rationale, the

Michigan court held that “[{s]imilarly, ‘the ‘perceived evil’

that Michigan seeks to address through its indecent exposure

statute is not the communication of some message associated

with indecent exposure; it is the indecent exposure itself.”

Pet. App. lla. The court also echoed the Barnes plurality’s

reasoning in declaring “Michigan’s indecent exposure statute

does not prevent the conveyance of any message. It merely

requires that messages must be conveyed within minimal

bounds of proscribed conduct having nothing to do with

expression.” /d.; see Barnes, 501 U.S. at 571 (plurality); see

also Pap’s, 529 U.S. at 301 (plurality).

The Court’s nude dancing decisions cannot be expanded

in this manner without undermining significant First

Amendment principles. Under the Court of Appeals’

approach, it would be possible to recast all filmed or

photographed works as involving the “conduct” of the actors

involved, and to treat the distribution of such works as

making that conduct “public.”° That cannot be the law.

Indeed, such a conclusion is directly contrary to the Court’s

review of “indecent” cable programming as “involv[ing]

speech alone.” Playboy, 529 U.S. at 814. Nothing in Barnes

or Pap’s indicates that the Court would approve the

application of public nudity statutes to television images — or

magazines or movies or photographs, for that matter. To the

contrary, in Erznoznick y. City of Jacksonville, 422 U.S. 205

(1975), the Court emphasized the constitutional distinction

between public nudity and representations of nudity shown in

public:

° Cf. Jenkins v. Georgia, 418 U.S. 153, 156 n.2 & 161 (1972) (reversing

movie theatre manager’s conviction under obscenity statute; defendant

had also been charged under statute making it a “crime to exhibit a

motion picture portraying acts which would constitute ‘public indecency’

... if performed in a public place”).

Scenes of nudity in a movie, like pictures of nude

persons in a book, must be considered as part of the

whole work . . . . [i]n this respect such nudity is

distinguishable from the kind of public nudity

traditionally subject to indecent-exposure laws.

Id. at 211 n.7 (citations omitted); see also Schad v. Borough

of Mt. Ephraim, 452 US. 61, 65-66 (1981) (“[AJjn

entertainment program [may not] be prohibited solely

because it displays the nude human figure. ‘[N]udity alone’

does -not place otherwise protected material outside the

mantle of the First Amendment.”) (internal citations

omitted); Barnes, 501 U.S. at 587 (Souter, J., concurring in

the judgment) (noting that Indiana’s public nudity statute did

not prohibit the dancer or her employer “from expressing an

erotic message by articulate speech or representational

means”).

As a matter of common sense, Petitioner’s “Dick Smart”

segment is speech, not conduct. However low-brow, the

“Dick Smart” segment is no different from any other

television show or film that expresses ideas through sight,

sound and creativity. The Court has consistently held that

the First Amendment applies with full force to this type of

entertainment. The Michigan court departed from this well-

settled law when it refused to apply meaningful scrutiny to

Petitioner’s conviction.

In addition to equating pure speech with conduct, the

Court of Appeals bolstered its application of O’Brien by

observing that Michigan’s public indecency law is a content-

neutral regulation. Pet. App. 13a-14a. The court held that,

because the indecent exposure statute did not prohibit

protected speech on its face, any application need only

survive intermediate scrutiny as a content-neutral restriction.

At least on their face, statements in the plurality opinions in

Barnes and Pap’s arguably support this proposition. See,

e.g., Pap’s, 529 U.S. at 298 (“Erie’s ordinance is on its face a

content-neutral restriction that regulates conduct, not First

Amendment expression”); Barnes, 501 U.S. at 566; see also

id. at 572 (Scalia, J., concurring) (“On its face, this law is not

directed at expression in particular”).

Recently, however, members of this Court have

emphasized that content-neutrality is “something of a

fiction,” and, accordingly, “content based” or “content

neutral” statutory text are at best imprecise markers for the

requisite level of scrutiny. See, e.g., City of Los Angeles v.

Alameda Books, Inc., 535 U.S. 425, 444-45, 448 (2002)

(Kennedy, J., concurring); id. at 455 (Souter, J., dissenting).

This case presents in stark terms the issue of whether facial

neutrality can insulate a law from stringent First Amendment

scrutiny when it is applied to criminalize the core expressive

content of speech. As interpreted by the Michigan Court of

Appeals, the indecent exposure law outlaws any public

exhibition of media that contains “offensive” nudity. That

application would appear to be the paradigm of content-based

censorship.

The Court of Appeals also cited Barnes for the

proposition that the government’s interest in protecting

“morality” — without any showing of “secondary effects” —

is sufficient justification for imposing criminal penalties on

Petitioner. Pet. App. 1la-13a. But “protecting morality” by

prohibiting speech that causes “offense” targets the primary

effects of expression, and strict scrutiny therefore applies.

See Boos v. Barry, 485 U.S. 312, 32+-€1988) (plurality)

(“The emotive impact of speech on its audience is not a

‘secondary effect’”); Playboy, 529 U.S. at 811-12. In recent

cases, moreover, this Court has indicated that targeting

secondary effects - rather than the immorality or

offensiveness of the speech itself — is a necessary prerequisite

for application of intermediate scrutiny. Alameda Books, 535

U.S. at 449-50 (Kennedy, J., concurring) (to warrant

intermediate scrutiny, “[t]he rationale of the ordinance must

be that it will suppress secondary effects — and not by

suppressing speech”); see also Playboy, 529 U.S. at 815 (“the

lesser scrutiny afforded regulations targeting the secondary

effects of crime or declining property values has no

application to content-based regulations targeting the primary

effects of protected speech”). To the extent that the plurality

opinion in Barnes continues to provide a refuge for speech

restrictions based on a moral code, the Court should make

clear that the idea of promoting public morality by

suppressing indecent speech is fundamentally at odds with

the First Amendment.’

B. The Decision Below Perpetuates Confusion About

The Level Of Scrutiny Applicable To Indecent

Cable Programming.

This Court’s cases indicate that cable programming

should receive full First Amendment protection. The Court

has applied searching constitutional review to government

attempts to restrict “indecent” material on cable. See

Playboy, 529 U.S. at 814; Denver Area Educ. Telecomms.

Consortium, Inc. v. FCC, 518 U.S. 727, 756 (1996). In

Playboy, the Court held that a statute requiring cable

operators to scramble or time-restrict sexually oriented cable

channels imposed a content-based burden on speech that

triggered, and failed, strict scrutiny. 529 U.S. at 814. And in

Denver Area, the Court struck down a requirement that cable

operators restrict “patently offensive” material on leased

channels because the statute did not “reveal the caution and

care” of “laws that seek to reconcile the critically important

’ In recent years, moreover, the notion that preserving a moral code

provides a legitimate governmental interest for restricting constitutional

rights has been called into serious doubt. See Lawrence v. Texas, 539

U.S. 558, 571 (2003).

interest in protecting free speech with very important, or even

compelling, interests that sometimes warrant resirictions.”

518 U.S. at 756.

Rejecting the strict scrutiny applied in Playboy, the

Michigan Court of Appeals instead cited Pacifica for the

proposition that “broadcasting . . . has ‘the most limited First

Amendment protection,” and concluded that the

government’s interest in protecting adults from offensive

materials in their home justified Petitioner’s conviction

without any showing of compelling interest or narrow

tailoring. Pet. App. 14a (quoting Pacifica, 438 U.S. at 748).

The court held that Pacifica “applies to cable television

broadcasting,” citing as support the plurality opinion in

Denver Area. Id.

The Michigan court’s holding below reflects confusion in

this Court’s own cases concerning the extent to which the

constitutional treatment afforded cable television differs or

overlaps with that afforded the traditional broadcast medium.

Compare Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637

(1994) (“the rationale for applying a less rigorous standard of

First Amendment scrutiny to broadcast regulation, whatever

its validity in the cases elaborating it, does not apply in the

context of cable regulation”), with Denver Area, 518 US. at

748 (plurality) (with respect to the effect of programming on

children, “cable and broadcast television differ little, if at

all’). Some statements suggest that the government’s interest

in protecting children from “indecent” or “offensive”

programming may be the same for both types of media.

Denver Area, 518 U.S. at 744 (plurality); id. at 771-72

(Stevens, J., concurring); id. at 776 (Souter, J., concurring);

id. at 804 (Kennedy, J., concurring). But the Court’s

decisions also reflect a recognition that cable and traditional

broadcast television differ in ways that may well result in less

tolerance for governmental restrictions in the cable medium

than has been allowed in the area of broadcast.®

Most recently, in Playboy, a majority of the Court

explicitly refused to apply the lower level of review

employed in Pacifica to the cable medium. Playboy, 529

U.S. at 814. Indeed, while acknowledging that “[c]Jable

television, like broadcast media, presents unique

problems... which may justify restrictions that would be

unacceptable in other contexts,” id. at 813, the Court in

Playboy emphatically stated that the standard for evaluating

content-based restrictions on “indecent” cable programming

is “clear: The standard is strict scrutiny.” Jd. at 814. Thus,

the Michigan court’s refusal to apply strict scrutiny directly

conflicts with this Court’s decision in Playboy.” And that

error was clearly outcome determinative, as the application

* One “key difference” between cable and broadcast television is that

“[c]able systems have the capacity to block unwanted channels on a

household-by-household basis,” which “reduces the likelihood, so

conceming to the court in Pacifica . . . that traditional First Amendment

scrutiny would deprive the Government of all authority” to address the

problem of minors’ access to indecent material. Playboy, 529 U.S. at

815. The Court has also acknowledged the development of technologies

that allow cable users to selectively block indecent material. See Denver

Area, 518 U.S. at 756-57. As the Court made clear in Playboy, the

government cannot ban indecent cable programming if the jess restrictive

measure of targeted blocking is a feasible and effective means of

furthering the government’s interests. Playboy, 529 U.S. at 815.

* The Michigan Court of Appeals’ application of Pacifica to cable

television also conflicts directly with several federal court decisions

striking down restrictions on indecent cable television programming.

See, eg. Cruz v. Ferre, 755 F.2d 1415, 1420-21 (ilth Cir. 1985)

(Pacifica inapplicable to cable because it “does not ‘intrude’ into the

home” in the way broadcast television does); Community Television of

Utah, Inc. v. Wilkinson, 611 F. Supp. 1099, 1113-14 (D. Utah 1985)

(same), aff'd sub nom. Jones vy. Wilkinson, 800 F.2d 989 (10th Cir. 1986),

aff'd, 480 U.S. 926 (1987); Community Television of Utah, Inc. v. Roy

City, 555 F. Supp. 1164, 1168-70 (D. Utah 1982) (same).

of Michigan’s indecent exposure statute to this cablecast

plainly cannot survive strict scrutiny. Thus, even if plenary

review by the Court of the First Amendment issues in this

case were not appropriate, Petitioner’s criminal conviction

should be summarily reversed on this ground alone.

In any event, the Michigan Court of Appeal’s holding

goes far beyond what even Pacifica approved, and the

Court’s review is necessary to clarify that an interest in

protecting adult viewers from “offense” is not a

constitutionally permissible basis for imposing a total ban on

“indecent” programming. Unlike the criminal ban here,

Pacifica upheld the FCC’s authority to regulate the time

period during which broadcasters are permitted to air

“indecent” material, based on the government’s interest in

protecting children. See 438 U.S. at 757 (“Commission

sought to ‘channel’ the monologue to hours when the fewest

unsupervised children would be exposed to it”) (Powell, J.,

concurring in part and concurring in judgment). This Court

has since repeatedly distinguished between the time

regulation approved in Pacifica and a total ban on indecent

material. See Reno, 521 U.S. at 867; Sable Commc’ns of

Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989).

Here, the Court of Appeals affirmed Petitioner’s

conviction despite the fact that his program was televised at

10:30 p.m. — within the “safe harbor” established by the FCC

for broadcast — and without any evidence that children

viewed or were at risk of viewing the program. Indeed,

nothing in the Court of Appeals’ decision turned on an

interest in protecting minors from exposure to “indecent”

material — the sole interest that this Court has held may

justify restrictions on non-obscene material transmitted by

broadcast or cable television or the Internet, provided the

regulations do not unduly burden adult speech. See Playboy,

529 U.S. at 811; Reno, 521 U.S. at 875; Denver Area, 518

U.S. at 743; Pacifica, 428 U.S. at 749-50. To the contrary,

Petitioner was convicted because another adult viewer was

offended by what she saw. Pet. App. 4a; Trial Tr. at 23-25.

And by its plain terms the Michigan court’s decision applies

to all nudity that any adult might find offensive, no matter

the time of the day. Pet. App. 6a. Thus, even if Pacifica

could properly be applied to cable television — a conclusion

this Court has declined to adopt, see Playboy, 529 US. at

815 — it provides no support for the Michigan Court of

Appeals’ decision here.

C. Application Of State Public Nudity Statutes To

Cable Programming Will Have Sweeping Effect.

Immediate review by this Court is urgently required in

light of the sweeping chilling effect the decision below will

have if not reversed. The interpretation employed by the

Michigan Court of Appeals would apply to any depiction of

nudity on cable that any viewer might deem “offensive.”

Indeed, the court’s logic would extend to movies, magazines

and other traditional media of protected speech. Given the

boundless nature of the Michigan court’s ruling, the

consequences of the decision are troubling and far-reaching.

The chilling effect of the Michigan court’s decision is

undeniable. See Reno, 521 U.S. at 871-72 (expressing

concern regarding the chilling effect of a criminal sanction

on speech); Ashcroft v. ACLU, 542 U.S. 656, 660, 667

(2004). Preventing the appearance of nude images that might

cause “offense” to cable television viewers is precisely the

justification for Petitioner’s conviction under the statute.

And violation of the indecent exposure statute today can

result in up to one year in prison or a fine of up to $1,000 or

both. Mich. Comp. Laws § 750.335a (2006). Given the

sweeping scope of the Michigan court’s ruling, and the

uncertainty about what kind of nude images would cause

“offense,” it is virtually certain that public access cable

programmers, and cable programmers in general, will be

deterred from televising cable programs containing nudity.

And because the rationale of the Michigan court, if left

uncorrected, could be used by prosecutors in every state with

a public nudity law to restrict nudity or indecency on cable

television and other First Amendment media, the effects of

Petitioner’s conviction are potentially widespread.

The burden is not limited to the “Dick Smarts” of cable

television. Under the Michigan court’s rationale, the public

indecency statute would conceivably extend to programming

such as HBO’s The Soprances, or the te!evising of Schindler’s

List, A Room With A View, The Talented Mr. Ripley, or any

other number of movies showing nudity on cable television

or, indeed, through any other medium. It would prohibit the

broadcast of Richard Strauss’s “Dance of the Seven Veils”

from the opera Salome, “everyone’s favorite example of

constitutionally protected striptease,” Miller v. Civil City of

Seuth Bend, 904 F.2d 1081, 1094 (7th Cir. 1990) (en banc)

(Posner, J., concurring), rev’d sub nom. Barnes vy. Glen

Theatre, Inc., 501 U.S. 560 (1991), and would prohibit many

graphic science programs. See Denver Area, 518 U.S. at 805

(Kennedy, J., concurring) (“Indecency often is inseparable

from the ideas and viewpoints conveyed, or separable only

with loss of truth or expressive power”). If allowed to stand,

the Michigan court’s rationale could be used to ban the

display of a whole host of visual representations of nudity

that some may find offensive.

Petitioner’s conviction has important and long-lasting

consequences for him personally, and for anyone else to

whom the public indecency statute is applied for making

programming containing nudity available to the public. This

Court has repeatedly recognized the “opprobrium and stigma

of a criminal conviction.” Reno, 521 U.S. at 872; see also In

re Winship, 397 U.S. 358, 363-64 (1970); Lewis v. United

States, 518 U.S. 322, 334 (1996) (Kennedy, J., concurring in

judgment). “A custodial arrest exacts an obvious toll on an

individual’s liberty and privacy, even when the period of

custody is relatively brief. . . . And once the period of

custody is over, the fact of the arrest is a permanent part of

the public record.” Atwater v. City of Lago Vista, 532 US.

318, 364-65 (2001) (O’Connor, J., dissenting). Under certain

circumstances, convictionunder the State’s indecent

exposure statute could have even more severe consequences,

including life imprisonment, see Mich. Comp. Laws

§ 750.335a(2)(c) (2006), and requiring registration as a sex

offender under Mich. Comp. Laws § 28.722 et seq.

That the televising of an opera, a critically-acclaimed

movie, or a bawdy stand-up comedy routine on cable

television could result in the actor'or even cable programmer

spending a year or more in prison shatters the protections of

the First Amendment.

II. Alternatively, The Court Should Summarily

Reverse On Due Process Grounds Because The

Law Did Not Give “Fair Warning” That It Could

Be Applied In This Way.

Even apart from these First Amendment questions,

Petitioner’s conviction is inconsistent with this Court’s “fair

warning” precedents. If the Court does not accept full review

of the case on the merits, it should at a minimum summarily

reverse on the merits. But if the Court does engage in

plenary review, it should grant the second question presented

as well.

The Due Process Clause requires that a criminal statute

give fair warning of the conduct it criminalizes so that “no

man [is] held criminally responsible for conduct which he

could not reasonably understand to be proscribed.” Bouie,

378 U.S. at 351. This fair warning principle not only

prohibits the enforcement of a criminal statute “so vague that

men of common intelligence must necessarily guess at its

meaning and differ as to its application,” but also “bars

courts from applying a novel construction of a criminal

statute to conduct that neither the siatute nor any prior

judicial decision has fairly disclosed to be within its scope.”

United States v. Lanier, 520 U.S. 259, 266 (1997) (quotation

marks omitted). The “touchstone” of fair warning is

“whether the statute, either standing alone or as construed,

made it reasonably clear at the relevant time that the

defendant's conduct was criminal.” /d. at 267. As this Court

has repeatedly made clear, the standard for determining

whether a criminal law provides fair warning is “the same as

the standard for determining whether a constitutional right

was ‘clearly established’ in civil litigation under [42 U.S.C.]

§ 1983.” Hope v. Pelzer, 536 U.S. 730, 740 (2002) (citing

Lanier, 520 U.S. at 270-71).

The Michigan Court of Appeals clearly violated the fair

waming requirement by applying to Petitioner an

unprecedented and unforeseeable construction of Michigan’s

indecent exposure statute. As the court acknowledged, the

“application of [the Michigan indecent exposure] statute or,

indeed, any indecent exposure statute, to television or film

images is unprecedented.” Pet. App. 5a (emphasis added).

Nationally, past convictions for indecent exposure appear to

be limited to physical exposures. See David Minneman,

What Constitutes “Public Place” Within Meaning of State

Statute or Local Ordinance Prohibiting Indecency or

Commission of Sexual Act in Public Place, 95 A.L.R.Sth 229

‘2002) (listing various locations in which indecent exposures

have been held to occur).'° The utter lack of any precedent

'° The lack of any prior case applying an indecent exposure statute to a

televised image distinguishes this case from Rose v. Locke, 423 U.S. 48

(1975), where the Court held that Tennessee’s “crime against nature”

statute gave fair warning that it applied to cunnilingus, because “[o]ther

jurisdictions had already reasonably construed identical statutory

even suggesting that a public indecency statute could be

applied to televised nudity made it far from “clearly

established” that Petitioner’s conduct was criminal.

The Court of Appeal’s application of the indecent

exposure statute to cable programming was not only

unprecedented, but also unforeseeable, in light of prior

Michigan court rulings limiting the statute’s scope to conduct

occurring in a public place. In People v. Vronko, 579

N.W.2d 138 (Mich. Ct. App. 1998), the court upheld the

defendant’s indecent exposure conviction for revealing his

genitalia and masturbating while seated in a parked car on a

public street. In reaching this result, the court interpreted the

statute to apply “in a public place,” either in the actual

presence of another person or “under circumstances in which

another person might reasonably be expected to observe [the

exposure].” Jd. at 142. The court noted that at common law,

an indecent exposure had to occur “in a public place,” and

that “nothing in the language of the statute suggests that the

Legislature intended to modify the common-law

interpretation.” Jd. Earlier Michigan cases applied the

statute only when the exposure occurred in a public place.

See People v. Wilson, 291 N.W.2d 73 (Mich. Ct. App. 1980)

(defendant masturbated on stage in front of a live audience);

People v De Vine, 261 N.W. 101, 102 (Mich. 1935)

(defendant exposed himself on his front porch, which was

frequented by children of neighboring families); People v.

Ring, 255 N.W. 373, 374-75 (Mich. 1934) (defendant

exposed himself in a nudist colony); People v. Katz, 203

N.W. 114, 115 (Mich. 1925) (defendant exposed himself in a

vacant lot while calling to children across the street).

language to apply to [cunnilingus].” /d. at 53; see also id. at 50 (“Anyone

who cared to do so could certainly determine what particular acts have

been considered crimes against nature, and there can be no contention

that the respondent's acts were ones never before considered as such”).

Under Vronko and its predecessors, it was far from

clearly established that televised nudity could be punished

under Michigan’s public indecency statute. Petitioner thus

could not have foreseen that he could he held criminally

liable for arranging for his program to be sent to GRTV for

broadcast on cable television. The record is devoid of any

evidence even suggesting thai Petitioner was in a public

place when he arranged to send the film to GRTV, and the

broadcast itself cannot plausibly qualify as a “place,” much

less a “public place,” under Vronko.'' The Court of Appeals

greatly enlarged the scope of the statute by applying it not

only to physical locations but also to televised images.

“Petitioner’s conviction was thus affirmed under a statute

with a meaning quite different from the one he was charged

with violating.” Rabe v. Washington, 405 U.S. 313, 315

(1972) (per curiam). !”

'' See The Compact Oxford English Dictionary 1353 at 937-38 (2d ed.

1991) (defining “place” as an “[o]pen space in a city; a square; a market

place;” “[a] material space;” “[a] particular part of space, of defined or

undefined extent, but of definite situation;’ “[t]he portion of space

actually occupied by a person or thing;” “a piece or plot of land;” “[a}

portion of space in which people dwell together;” “[a] residence,

dwelling, house; a seat, mansion, palace;” or “{a} building, apartment or

spot devoted to a specified purpose”).

'* Thus, the Court of Appeals’ decision “upset” the earlier, narrower

construction of the statute in Vronko. See Marks v. United States, 430

U.S. 188, 195 (1977) (broad reading of obscenity statute was

unforeseeable because it upset a previously established narrower

construction); see also Douglas v. Buder, 412 U.S. 430, 432 (1973) (per

curiam) (interpretation of “arrest” to include a traffic citation was

unforeseeable because it conflicted with the narrower definition of

“arrest” in the parole revocation statute); Bouie, 378 U.S. at 350

(reversing criminal trespass convictions because state court’s construction

of criminal trespass statute was unforeseeable in light of the narrow

statutory text).

Further, Petitioner’s broadcast took place against a

backdrop of decisions from this Court applying searching

scrutiny to restrictions on “indecent” expression on cable and

the Internet. See Denver Area, 518 U.S. at 756; Reno, 521

U.S. at 867; see also Playboy, 529 U.S. at 814. Nothing in

this Court’s decisions would have led Petitioner to believe

that he could be prosecuted and convicted under a public

conduct statute for arranging for the cablecast of his program.

To the contrary, if anything, Petitioner would have

reasonably believed that well-established First Amendment

principles protected cable programs containing controversial

or even offensive speech, provided it was not obscene.

The violation of fair warning in this case is materially

indistinguishable from the one at issue in Rabe v.

Washington, 405 U.S. 313 (1972) (per curiam). There, the

petitioner had been convicted of violating a Washington

obscenity statute prohibiting the knowing display of obscene

motion pictures. In affirming the conviction, the Washington

Supreme Court held that even though the film at issue was

not itself obscene and thus could lawfully be displayed at an

indoor theatre, it was obscene when shown at a drive-in

theatre. This Court overturned the conviction because the

Washington Supreme Court’s broadening of the statute was

unexpected: it did not give the petitioner fair notice that

criminal liability was dependent upon the place where the

film was shown. /d. at 315-16 (relying on Cohen v.

California, 403 U.S. 15, 19 (1971), in which the Court held

that California’s statute prohibiting disturbances of the peace

did not provide the petitioner fair notice that certain kinds of

otherwise permissible speech were impermissible when

uttered in a courthouse). This case is no different. The

Michigan Court of Appeals’ broadening of the statute to

include televised images was similarly unexpected.

Petitioner had no way to anticipate that a statute prohibiting

exposures in a public place would be extended to his cable

television program. Just as in Rabe, summary reversal is

warranted to correct the state court’s grave violation of due

process.

In short, by no stretch of the imagination did either the

public indecency statute itself, or court decisions interpreting

it, clearly establish that the statute proscribes offensive

nudity in a cable program. Petitioner’s conviction patently

violates the fair warning requirement under this Court’s

cases. And the Court has not hesitated to summarily reverse

state court <riminal convictions in analogous situations. See

Lanier v. South Carolina, 474 U.S. 25 (1985) (per curiam)

(summarily reversing conviction as contrary to Supreme

Court’s Fourth Amendment’ search and __ seizure

jurisprudence); Payne v. Virginia, 468 U.S. 1062 (1984) (per

curiam) (summarily reversing conviction as contrary to

Supreme Court’s Double Jeopardy Clause jurisprudence);

Rabe, 405 U.S. at 316 (summarily reversing state court

obscenity conviction as contrary to Supreme Court’s fair

warning jurisprudence); see also Douglas, 412 U.S. at 432

(summarily reversing state court’s revocation of parole as

contrary to Supreme Court’s fair warning jurisprudence)."?

Summary reversal is particularly warranted here in light of

the important First Amendment interests at stake. See Marks,

430 U.S. at 196 (“We have taken special care to insist on fair

warning when a statute regulates expression and implicates

First Amendment values”); Rose, 423 U.S. at 50 n.3 (fair

warning case noting that “special judicial scrutiny” is called

for when “the statute threatens a fundamental right such as

freedom of speech”).

'° See also Robert L. Stern, et al., Supreme Court Practice 323 (8th ed.

2002) (the Supreme Court “has shown no reluctance to reverse summarily

a State court decision found to be clearly erroneous”).

CONCLUSION

The petition for a writ of certiorari should be granted and

the case set down for plenary hearing on the merits or,

alternatively, the conviction should be summarily reversed.

Respectfully submitted,