Thoughts on the Third Circuit's Super Bowl Ruling

Here's an Op-Ed I wrote earlier this week about the Third Circuit's recent reversal of the FCC's fine arising from the Janet Jackson boobie incident. I'm posting it here because it doesn't look like it's going to be picked up by any of the newspapers I submitted it to. The Op-Ed format accounts for the colorful language and the lack of in-depth consideration of the contours of administrative law.

The recent federal appeals court ruling striking down the FCC's fine for Janet Jackson's exposed nipple is certainly welcome news. The infamous "wardrobe malfunction" at the center of the dispute came to symbolize the hypersensitivity of government censorship and the excesses of the FCC's indecency enforcement, and the court's ruling confirms what many have been saying all along: The exposure of a woman's breast for a fraction of a second is not the sort of thing that should unleash government attack dogs.

The court's determination that the Super Bowl fine marked a radical departure from the FCC's prior practices should come as a surprise to no one -- including the FCC. As the FCC launched its fanatical crusade against "indecent" programming in 2004, the Commissioners acknowledged that they were changing the rules. But this did not stop them from levying massive fines and extracting unprecedented "settlements" from bewildered broadcasters who were terrified of increased government scrutiny.

It is important to remember that the Super Bowl incident was only the symbolic epicenter of a year-long struggle between the FCC and broadcasters in which the FCC consistently came out on top, often in ways that circumvented judicial review. Much of the FCC's so-called regulatory activities focused on securing record-breaking settlements from networks in exchange for "clean slate" dismissals of all pending complaints. Even Viacom, the parent company of CBS which has been fighting the Super Bowl fine in court for the last four years, paid the FCC $3.5 million in late 2004 to clear all complaints except those arising from the Super Bowl. And even as networks were writing checks to placate the FCC, broadcasters imposed independent restrictions on their own content, terrified of portraying something that might re-ignite the FCC's ire. Fear of FCC reprisal prevented ABC from airing Saving Private Ryan on Veteran's Day, led CBS to cancel a third installment of the Victoria's Secret Fashion Show, and drove Howard Stern off the terrestrial airwaves. The court's ruling that the Super Bowl fine was improper did not, and cannot, remedy the year of censorship at the hands of the FCC.

The networks can hardly be blamed for bowing to the FCC's pressures. Networks are in the business of making money for their parent companies, not waging expensive legal battles over free speech rights. Even CBS's court victory illustrates the predicament in which networks found themselves. It took CBS four years to secure a reversal of the half million-dollar fine levied in 2004. Facing the prospect of protracted litigation with uncertain outcomes as additional fines are levied by an unrestrained FCC, it makes sense that the networks would simply pay up rather than stand by their content. Nor can Congress be relied upon to reign in the FCC. In the midst of the FCC's crusade, Congress overwhelmingly increased the maximum indecency fine by a factor of ten.

Ultimately, the FCC's fervor died down and broadcasters began to push back, restoring edgy and envelope-pusing programming to the airwaves. But there is nothing, not even the recent court ruling, to stop the FCC from launching a similar campaign in the future. The FCC's crackdown in 2004 arose from an unapologetic disregard of established rules and regulations. FCC Chairman Kevin Martin, in responding to the recent court ruling, lamented the fate of "families and parents" rather than acknowledging the Commission's responsibility, as a government entity, to respect the rule of law. In order to meaningfully restrain the FCC and limit government censorship going forward, the FCC must be subject to clear, rigid standards governing not only what constitutes "indecent" material but also when the Commission can change the landscape of its own regulations.

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This page contains a single entry by hb published on July 25, 2008 7:27 AM.

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