ACLU Letter Fairfax Public Access Cable

American Civil Liberties Union of Virginia Northern Virginia Chapter
January 22, 2001
Hon. Katherine K. Hanley, Chair, and the Members of the Board of Supervisors of Fairfax County Government Center 12000 Government Center Parkway Fairfax, VA 22035

Re: Public Access Cable

Dear Chairwoman Hanley and Members of the Board:

I write on behalf of the local chapter of the American Civil Liberties Union of Virginia. Hundreds of our members live in Fairfax County and help support its outstanding public services.

Not long ago our chapter was invited to consider creating some original programming for cablecast over Channel 10 in Fairfax County, and as we explored that idea a number of our chapter board visited Channel 10's facilities late last year. I can tell you from one visit to the studios just how vibrant and altogether remarkable it is. Channel 10 has made a hundred flowers bloom on the County's cable system. This is local life as it should be, and the public access the County grants here gives all of us much to be proud of, and helps make this the outstanding place it is to live.

Our chapter is still thinking seriously of putting a program together for Channel 10, featuring interviews as thoughtful as we can make them on civil liberties issues of the day, but we have just learned that the County may be on the verge of rewriting its ordinances and the franchise agreement with the local monopoly cable provider so as to eliminate the public access vehicle from the County's cable service entirely.

Many others, I am sure, will comment to you about the devastating blow their organizations and messages would suffer as a result of such a move. Our all-volunteer chapter, certainly, would find an essentially public cablecast the only way to put a program before a local TV audience.

You are no doubt aware that under the first amendment to the federal Constitution the freedom to eliminate Channel 10 may not be unlimited. For one thing, it is not out of the question that a court might rule that after a generation in existence Channel 10 has become the equivalent of a "traditional public forum" that cannot be eliminated unless on a showing of some compelling governmental interest, and a further showing that there are no steps less destructive of the forum that the government could take consistent with that interest. Another consideration is that viewpoint discrimination is prohibited, either by the government or by its agents, as to the material cablecast over the public access vehicle. These constitutional considerations exist for the County regardless of whatever profit concerns the franchisee may be urging before you.

Finally, it is possible that the franchisee's ultimate interests, like those of cable franchisees everywhere, go beyond the elimination of public access to the elimination of all franchise fees and other payments to the County as a condition of their monopoly. It would be a terrible shame if the County were to let Channel 10 disappear as an appeasement of the franchisee, and were then to find, after suffering that irrevocable loss, that the franchisee had returned to demand once again, like the monster plant in Little Shop of Horrors, "Feed Me!"

I am sure the County has no wish to entangle itself in legal or other difficulties that it may not yet have fully explored. We believe further study is imperative before the County seriously contemplates the elimination of Channel 10 as a franchisee-funded public access vehicle.
And we believe it would be tragic for the County, by action or by inaction, to silence so completely the voices of its citizens in the lively cultural conversation that is Channel 10, after such a long tradition of letting those voices be heard and celebrated.

At bottom this is a quality of life question, like so many that you on the Board face. Please do not make a real and permanent sacrifice of the richness of Fairfax County's community life in the interest of an illusory and temporary saving of funds.

Thank you very much.
Sincerely,
Stephen B. Pershing, President Northern Virginia Chapter ACLU of Virginia
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Voting Section, Civil Rights Division U.S. Department of Justice