A federal appeals court last Monday voided a $550,000 fine against CBS for broadcasting Janet Jackson’s split-second breast exposure during the 2004 Super Bowl halftime show.
The ruling was a setback for the Federal Communications Commission, which had asked the 3rd U.S. Circuit Court of Appeals in Philadelphia to affirm that instances of fleeting nudity on broadcast television violated federal indecency statutes. The court determined the FCC had changed longstanding policy on “fleeting utterances” without adequately notifying broadcasters of the change and explaining its reasoning.
“I am surprised by today’s decision and disappointed for families and parents,” Federal Communications Commission chairman Kevin Martin said in a statement a few hours after the ruling’s release. “The Super Bowl is one of the most watched shows on television, aired during the hours when children are most likely to be in the audience.”
The FCC’s inability to police indecent content over the public airwaves because of judicial opposition could spark a debate over the need for policymakers to experiment with new ideas that less directly impact First Amendment rights.
Martin, for example, has advocated the a la carte sale of cable networks, saying such a regime would allow parents to prevent indecent content from ever entering their homes in addition to lowering their monthly cable bills.
“[A la carte] becomes essentially the backup plan for those in Congress or the FCC who can’t directly regulate speech. They will seek to indirectly regulate speech through mechanisms like a la carte regulation,” said Adam Thierer, senior fellow at the Progress & Freedom Foundation, a free-market think tank supported by media and communications firms.
The sale of cable networks on an individual basis runs counter to the pay TV industry practice of bundling dozens of channels in a package sold on a take-it-or-leave it basis. Cable officials assert that bundling is the most efficient way of selling programming and sustaining content aimed at niche audiences.
Last June, a panel of the 2nd U.S. Circuit Court of Appeals in New York, in a 2-1 ruling, tossed out the FCC’s ruling that singer Bono’s one-time use of the F-word during NBC’s live coverage of the 2003 Golden Globe awards violated its indecency rules, which apply to broadcasts airing from 6 a.m. to 10 p.m.
Like the 3rd Circuit in the Janet Jackson case, the 2nd Circuit held that the FCC couldn’t start punishing fleeting or isolated indecency now because the agency had for decades been telling broadcasters that indecent words and images had to be repeated in a shocking way in order to fall outside the law.
“Like any agency, the FCC may change its policies without judicial second guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure,” the 3rd Circuit ruled in a 99-page opinion.
The U.S. Supreme Court has agreed to review the 2nd Circuit’s ruling in the fall, the most important broadcast indecency case to reach the court since 1978 when it allowed the FCC to reprimand a Pacifica Foundation FM radio station for airing comic George Carlin’s “Filthy Words” routine in the early afternoon.
An FCC setback in the high court could prompt Congress to consider new regulatory approaches that take into account all TV homes, not just over-the-air dependent viewers.
Some are hopeful that a la carte mandates would solve parental concerns while at the same time responding to court resistance to governmental restraints on speech.
“I don’t think there’s any question that a content-neutral cable choice solution would survive the courts. That’s simply allowing the free market to work in cable,” said Dan Isett, director of public policy for the Parents Television Council.
Congress would need to take the initiative on a la carte because even Martin has said his agency does not have authority to do so. Congress could come under pressure to consider such an option if the courts stop the FCC from restricting and punishing speech.
“Obviously, it’s an argument someone can make something of. I still think the hurdle between broadcasting and cable is so high that it’s unlikely that Congress will try to jump it,” said First Amendment attorney John Crigler, a partner at Garvey Shubert Barer.