FCC appeals indecency case to Supreme Court
December 1, 2008
The FCC has asked the U.S. Supreme Court to overturn the 2004 Janet Jackson Super Bowl halftime show decision — a case thrown out by the Third Circuit Court of Appeals in July. The issue involves a potential $550,000 fine against CBS stations for the broadcast.
The commission, backed by the Department of Justice, filed a petition for a write of certiorari. The parties asked the high court to hold the petition in abeyance until after it decides the FOX case, another indecency case that is now pending before the Supreme Court.
The petition argues that the lower court did not give due deference to the FCC’s “legitimate and rational basis” for its decision. It also argued against the appellate court’s intruding into the FCC’s area of jurisdiction.
CBS responded that it hoped the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block fleeting material. “Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades,” it said.
In both the FOX and Jackson cases, the appeals courts found for broadcasters, declaring that the FCC had been arbitrary and capricious in its application of indecency rules. The Janet Jackson Super Bowl case was the incident in 2004 that caused the Bush-era FCC’s four-year long crusade against what it called indecent broadcast content. The decision changed a decades-old FCC policy of not holding fleeting nudity indecent.