Talking Penis Cable Show Host Won't Get Day In Court

GRAND RAPIDS, MICHIGAN - Amateur TV producer Timothy Huffman, whose joke-telling penis character led to his indecent-exposure conviction, hoped to make a federal case after the state Supreme Court refused his appeal.
"Our plan is to go all the way to the U.S. Supreme Court," Huffman, 47, of Sparta, said Friday. "We did not violate the law. If Steven Spielberg can show naked people on NBC (Schindler's List) without incident, I should be able to show nudity on paid cable. There was nothing sexual about the 'Dick Smart' skit."
The three-minute skit of a penis with facial features ran in spring 2000 as part of his long-running show, "Tim's Area of Control."
After a viewer to GRTV public-access cable complained, Huffman was charged with indecent exposure.
It set off nearly six years of court fights that included Kent County prosecutors, the American Civil Liberties Union and attorneys representing the Alliance for Communications Democracy and Alliance for Community Media. Area attorneys as well as lawyers from Washington, D.C., and California filed briefs in support of Huffman.
The state Supreme Court denied Huffman's request to review a decision last year by the state Court of Appeals upholding his conviction.
Huffman was convicted of indecent exposure in Grand Rapids District Court, and sentenced to one day in jail and one year on probation. A Kent County Circuit Court judge, in upholding the conviction, said Huffman's skit wasn't protected speech, rather an action.
Huffman argued the indecent-exposure statute did not apply to television programming, and if it did, he was protected by the First Amendment.
The Court of Appeals said the state wasn't trying to stop Huffman from communicating a message -- it was the indecent exposure that was illegal.
"Further, the requirement of some minimal clothing does not deprive Dick Smart of his message; it simply makes that message slightly less graphic. Thus, Michigan's indecent-exposure statute does not prevent the conveyance of any message."
Washington, D.C., attorney James Horwood believes Huffman has a chance in the federal court system. He joined other attorneys who wrote: "The Court of Appeals' opinion is in direct and irreconcilable conflict with controlling decisions of the U.S. Supreme Court on the First Amendment protections afforded cable programming. The issue is not close: The state cannot convict Mr. Huffman for being a tasteless comedian."
Prosecutor William Forsyth and Assistant Prosecutor Timothy McMorrow, who argued the appeals, said the conviction was proper.
"If he had done the exact same thing at the Calder Plaza during Festival, you'd arrest him and nobody would say anything about it, other than, 'Good, you arrested him,'" Forsyth said.
Forsyth said he can't understand why showing a full-screen close-up of a penis on television is different than exposing oneself in public -- "as if somehow that makes it OK."
McMorrow was glad to win the appeal, but said it was "kind of an interesting case from a legal standpoint. It would have been a fun case to argue."
from The Grand Rapids Press