In a rapid progression of recent legal maneuvers by lawyers representing broadcasters, the National Journal reported that “a potentially epic battle over the future of broadcast 'indecency' laws is taking shape.”
Most recently, the CBS network filed suit in the 3rd U.S. Circuit Court of Appeals in Philadelphia, arguing that the 2004 Super Bowl half-time show featuring the exposure of the breast of singer Janet Jackson was not indecent.
All four major networks have been itching to take to the FCC to court, and legal experts familiar with the matter believe that the networks have a strong First Amendment argument in all cases, the National Journal said.
The FCC is bracing for the fight.
“The commission will vigorously defend the [fine] issued against CBS,” said FCC spokeswoman Tamara Lipper. “CBS' continued insistence that the half-time show was not indecent demonstrates that it is out of touch with the American people. Millions of parents, as well as Congress, understand what CBS does not: Janet Jackson's 'wardrobe malfunction' was indeed indecent.”
Another set of indecency cases is before the 2nd U.S. Circuit Court of Appeals in New York and the federal D.C. Circuit Court of Appeals. While the Super Bowl raises the question of whether split-second flesh exposure is indecency, the other cases covering instances of indecency involve profanity, the Journal report said.
In those cases, the preliminary legal jockeying involved the FCC splitting the networks and their affiliates into two camps: those who say they want the FCC to reconsider the matter of swear words, and those who want the matter taken promptly to court.
CBS, NBC, and the FOX network and affiliates want the matter to go to court. Walt Disney's ABC network and the affiliates of ABC, CBS and NBC favor more reconsideration time for the FCC.
The FCC has been seeking to slow the battle in the 2nd Circuit because the agency would rather proceed on the more politically appealing Super Bowl matter, legal experts told the Journal.
In late July, CBS paid the $550,000 fine it was issued in March 2006 so that it could bring the matter to court.
“CBS has apologized to the American people for the inappropriate and unexpected half-time incident,” the network said in a statement, “and immediately implemented safeguards that have governed similar broadcasts ever since. However, we disagree strongly with the FCC's conclusions and will continue to pursue all remedies necessary to affirm our legal rights.”
CBS chose to file in Philadelphia because the company is chartered in Delaware, which is included in the 3rd Circuit, the Journal reported. Philadelphia is also part of that circuit. But the circuit has issued strongly pro-First Amendment decisions and also blasted the FCC over media ownership in 2004.