Mayor to station: Free speech has its limits
The Gulf Coast city of Port Arthur, Texas, is giving a nonprofit low-power FM station four months to get its studio and offices out of City Hall after the station refused to eliminate political topics from its programs.
The city is trampling on the free-speech rights of KSAP (“The Breeze”), according to station leaders and local politicos on their side. They say Mayor Deloris “Bobbie” Prince is now trying to scuttle an alternate site as well — a city-approved plan to relocate the station to a soon-to-be-vacated firehouse.
“At some point, I think the mayor took it upon herself to get rid of the station,” says Martin Flood, a Port Arthur city councilman.
Other officials counter that the city simply needs the space now occupied by KSAP.
But they don’t deny that they want to evict the station because of what it broadcasts. As long as the station is based on city property, its penchant for political commentary could get the city in hot water with state ethics boards, which have previously fined other civic officials for plugging ballot issues on municipally-controlled broadcast stations, says Steve Fitzgibbons, city manager.
“That kind of liability we just don’t need,” he says.
KSAP, licensed to Truth and Education Corp., and its eight full-time volunteers have had free use of an office in City Hall since the station launched in 2005, according to Stephen Mosely, the station’s founder and executive director.
In June, according to city documents, Port Arthur offered to let KSAP relocate to the City Hall basement if Mosely would sign off on a new clause in the lease forbidding the station from airing “political shows” or “personal references or political opinions” by hosts, guests or callers.
Mosely says he declined that deal.
Fitzgibbons says the city never received a response from KSAP, so the city council voted July 1 to end the station’s occupancy under a termination clause in the lease. That gives KSAP 120 days to vacate its space.
“We’re unwilling to abide by the council’s decision to kill free speech,” Mosely says. “That’s something we just can’t do.” Mosely says the political comments that concerned city leaders were limited to occasional, unplanned outbursts from guests and callers.
The eviction comes at a time when KSAP hopes to ramp up to full power. The station applied for an available frequency last fall during the FCC’s application window, but it will have to compete with other applicants.
Those concerns now take a backseat to free-speech issues, Mosely says. However, the station can’t afford legal counsel, and the American Civil Liberties Union hasn’t responded to queries he made a few weeks ago, he says.
The ACLU is probably KSAP’s best option if it wants to mount a legal challenge, says Ernest Sanchez, a Washington-based communications attorney and former NPR general counsel. Federal regulators such as the FCC will almost always find technical reasons to avoid getting tangled up in First Amendment issues, he says.
Sanchez wasn’t familiar with the situation in Port Arthur. But based on the facts as described, he says, “I don’t think the city council can create an on-the-fly prohibition and expect a thoughtful court to go along with it.” A landlord who leases space to a newspaper couldn’t dictate what the paper can and can’t print, he notes.
That said, KSAP might want to take the eviction as a blessing in disguise, considering its recent hassles, Sanchez says.
“They ought to consider that by accepting this space or any space from the city,” he says, “they’re making themselves vulnerable to being coerced in a variety of ways.”
Prudence or vengeance?
The 100-watt KSAP is the only radio station licensed within Port Arthur, a city of around 60,000 situated across the Sabine Lake estuary from Louisiana, roughly 20 miles inland from the Gulf of Mexico. Mosely and his all-volunteer staff put it on the air in 2005 after nearly five years of LPFM activism and FCC applications.
The station plays music, much of it from local acts, offers broadcast training to Port Arthur students and airs topical call-in programs. The station won praise as one of the few sources of information available to Port Arthur residents during Hurricane Rita in 2005.
“It’s a very valuable little station,” says Ginny Berson, v.p. and director of federation services for the National Federation of Community Broadcasters.
Since its inception, KSAP has enjoyed a relatively harmonious relationship with the city; city council members and past mayors have hosted several of its shows. In November, the council voted to extend the station’s lease in its original space until 2013, according to city documents. In April, the council still liked KSAP well enough that it offered the station free space in a soon-to-be-vacated firehouse.
Less than two months later, it voted to evict. [And on July 15, after publication of this article, the City Council withdrew its offer of the firehouse site, according to Mosely.]
So what happened? The short answer: The city council elections in May replaced members friendly to KSAP with those who are less so.
The longer answer depends on whom you ask.
According to Mosely and politicos sympathetic to the station, Mayor Prince, in office since May 2007, courted allies on the council and otherwise worked to run off the station because she hasn’t enjoyed being criticized on air by callers and occasionally by fellow city officials.
“She accused me of slamming her,” says John Beard Jr., a councilman who hosted a show but says he quit to defray criticism of the station. “She said she doesn’t want her tax dollars to support people slamming or saying negative things about her.”
Prince also questioned the deal to give the firehouse to KSAP.
The mayor, who has a seat on the city council, used it in April to oppose the firehouse lease, but she was alone on that vote.
After the vote, she sent the state attorney general a lengthy brief by City Attorney Mark Sokolow, questioning the appropriateness of the move and outlining complaints about the station. The brief claims that council members have used the station in “furtherance of their own political careers” through “opponent bashing” and political grandstanding.
Beard suspects the station will never win a fight with City Hall. When the city says it must move KSAP out of one space, he points out, it begins challenging the next place it would locate.
“You resolve one thing and then something else comes up,” Beard says. “Pretty soon it becomes clear that their problem is really with the station itself.”
KSAP can also look forward to struggles over its transmitter site. Its transmitter and antenna are at a Port Arthur water tower roughly a mile from City Hall.
Mayor Prince says she supports the station, according to a quotation in a June 22 fence-sitting editorial in the Port Arthur News, but she’s worried Port Arthur’s grants and donated space for KSAP could make the city legally liable for any slanderous remarks or “ethical violations” on the station.
Free speech, she wrote, “does have limits.”
Fitzgibbons, the city manager, returned a reporter’s call to the mayor last week and said he backs her position. He noted that the Texas Ethics Commission in 2003 sanctioned three city officials in Beaumont, located a few miles up US 287, because it determined they had advocated a position on a specific ballot initiative, violating the Texas Election Code, while appearing on a public access cable show.
Fitzgibbons acknowledged that the Beaumont situation wasn’t directly analogous to KSAP. But the city doesn’t want to take any chances, he said.
“They’re in our building” rent-free, Fitzgibbons said. “That doesn’t mean they’re a part of us, but it certainly would bring us into the picture if there was an ethics issue.”
As for the firehouse, the mayor just wants to make sure it’s the best municipal use of a facility Port Arthur spent nearly $140,000 to repair after the 2005 hurricanes, Fitzgibbons said.
He didn’t comment on suspicions held by Beard and others that the council planned to overturn the firehouse offer on its own. Indeed, a city employee, during a phone conference call with Current about the ordinance, asked, “Aren’t we going to rescind that one?” Fitzgibbons, the city manager, cut short the staffer’s remark.
Everyone, including KSAP, will be better off if the station just leaves city property altogether, Fitzgibbons said. “It’ll let the station fulfill its mission without being constrained by any rules.”
Last week, Mosely seemed resigned to finding a home for the station outside of city property. He said he’ll soon hold an open meeting for the community to present his side of the story and solicit site-hunting tips.
“I’m not trying to incite people to be against their government,” he said. “The city gave us a chance to build the station.”
“But now they’re not willing to let people say what’s on their minds,” he said. “And you can’t stop that.”
Web page posted July 17, 2008
Copyright 2008 by Current LLC
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