SF pirate appeals case
InsideBayArea dot com reports a San Francisco FM pirate station, San Francisco Liberation Radio, should have had its day in court before federal officials seized its equipment and shut it down in 2003, its lawyer told a panel of appeals judges Wednesday.
The station, which aired music, local news and public affairs programming for a decade and "interfered with no one," attorney Mark Vermeulen argued, even earning an August 2003 resolution of support from the San Francisco Board of Supervisors.
But federal agents raided the station's studio in October 2003, seizing its gear. Federal prosecutors had obtained an arrest warrant for the equipment and then had persuaded a federal judge to sign a writ of entry allowing them to go in to get the equipment. "Both documents were obtained without the presence or knowledge of the station's lawyers," the story said.
In a special session of the 9th U.S. Circuit Court of Appeals held Wednesday at the University of California, Berkeley, Boalt, Vermeulen argued that this deprived the station of its right to due process of law.
He said that even without an FCC license, which the station had sought unsuccessfully during its decade on the air, the station still was owed "rigorous procedural safeguards" before being deprived of the equipment that was its means of constitutionally protected free speech, and the public's means of hearing that speech.
Circuit Judge Richard Clifton seemed to doubt Vermeulen's argument from the start. "I hear your due process argument but I don't believe it goes anyplace. ... There's really nothing to do at this point, is there?" he asked, noting the station indisputably lacked a license and so was subject to having its equipment seized.
Unlike print or online communications, broadcasting over public airwaves is still "inherently limited" and needs "a traffic cop to keep straight who's on what frequency," Clifton said. "It's the FCC, not the court, that's the traffic cop...I'm not sure this is anything but an empty exercise."
Senior Circuit Judge Betty Fletcher suggested the station's operators "ought to be lobbying Congress to change the statute." Vermeulen replied that they are, but still deserved a day in court to make their constitutional arguments before their equipment was seized, the story said.
Justice Department appellate attorney Eric Feigin argued that another judicial circuit has found there's no due process right under this statute before equipment is seized, and no First Amendment right to broadcast without a license.
Meanwhile, San Francisco Liberation Radio has gathered new equipment but has refrained from returning to the airwaves "out of respect for the proceedings," Vermeulen said. It streams at www.liberationradio.net.
