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Change the channel, dude

Just like people of our generation remember where they were the day John Kennedy was shot, and of the generation prior to that remembered where they were when Pearl Harbor was bombed, the current generations will no doubt remember where they were on September 11, 2001, and on February 1, 2004.

What's that?  February 1, 2004?  Yes, that was the date of the infamous Super Bowl XXXVIII halftime show, featuring Janet Jackson and Justin Timberlake, the horrible denouement of which is recounted in vivid detail in the 3rd Circuit's opinion the other day in CBS Corp. v. Federal Communications Comm.:

Timberlake was unveiled on stage near the conclusion of the Halftime Show. He and Jackson performed his popular song "Rock Your Body" as the show's finale. Their performance, which the FCC contends involved sexually suggestive choreography, portrayed Timberlake seeking to dance with Jackson, and Jackson alternating between accepting and rejecting his advances. The performance ended with Timberlake singing, "gonna have you naked by the end of this song," and simultaneously tearing away part of Jackson's bustier. CBS had implemented a five-second audio delay to guard against the possibility of indecent language being transmitted on air, but it did not employ similar precautionary technology for video images. As a result, Jackson's bare right breast was exposed on camera for nine-sixteenths of one second.

After what the FCC described as "an unprecedented number of complaints," it ultimately fined CBS $550,000 -- which works out to just a tad more than $61,000 per 16th of a second -- because it determined that "the broadcast of Jackson's exposed breast was (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting," and that "the brevity of the image was outweighed by the other two factors."

The apparent "fleeting breast" policy is an extension of the "fleeting expletives" policy recently implemented by the FCC.  As I detailed in a post back in February, for close to thirty years the FCC had not fined broadcasters for indecent material unless the material "dwells on or repeats at length descriptions of sexual or excretory organs or activities."  Then in 2003, the FCC fined Fox for its broadcast of the Emmy Awards, during which Bono and Cher had both dropped the f-bomb.  It announced that henceforth, even isolated use of that word would be penalized, and later included the use of the word "shit" in that category.The 2nd District reversed the FCC (opinion here), basically on administrative law grounds, although it noted in dicta that there might be some constitutional problems of vagueness in the FCC's new rule. 

In Monday's decision, the 3rd Circuit reversed the FCC on the same administrative grounds, but also held found that there were First Amendment problems.  The courts have consistently held that where a criminal law (or one imposing a fine, as here) may impinge on free speech, there has to be an intent to violate the law, at least constituting recklessness.  CBS' conduct here didn't satisfy that scienter requirement; at most, it had been merely negligent.

The Supreme Court is scheduled to hear the "fleeting expletives" case next fall, and if you've got a hankering to read Everything You Always Wanted to Know About Broadcast Law, you can check out SCOTUSWiki, which has copies of all the briefs, including the ten amicus briefs filed by various groups.  Many of those briefs are from the Usual Suspects, like the Parents Television Council and Morality in Media.  A couple caught my eye, though; two briefs were filed "in support of neither party."  Turns out they're by some children advocacy groups worried that if the Supreme Court goes too far, it might throw out FCC's ability to regulate television content altogether, and that means regulations prescribing how much children's television shows the stations have to air.

That's not likely to happen.  To be sure, the entire FCC supervisory scheme is on somewhat shaky grounds.  It was legitimized by the Supreme Court's decision in Red Lion v. FCC back in 1969.  At that time, television viewers were limited to three networks and a smattering of UHF stations; now, 88% of American households have either cable or satellite or both.  The fairness doctrine, which was at the heart of the decision in Red Lion, was abolished ovejackson_timberlake_narrowweb__300x366,4.jpgr 20 years ago.  But Chief Justice Roberts has shown a desire, and ability, to get the Court to rule on the narrowest grounds, and that's the administrative issue.

That's too bad, especially since those offended by such things don't even have to get up to change the channel any more.  (Although, admittedly, the 9/16ths-second display pictured to the right would not allow even the most nimble-fingered spectator to change the channel before the assault on his senses had been completed.)  And the notion that the offensiveness of the display caused a groundswell of public disgust took a hit when some people looked at the origin of all those complaints the FCC claims it receives.  Turns out that of the 240,000 complaints the Commission received in 2003, 99.8% of them -- that's right, folks, 99.8% -- were generated by a single organization, the Parents Television Council.

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