05.04.2009 11:00 AM
SCOTUS Bounces Flash Dance
scotusWASHINGTON (May 3, 2009): The Supreme Court sent Janet Jackson’s breast back to a lower court today. The Justices reviewed a ruling that CBS was not liable for the 2004 incident in which Ms. Jackson’s breast was exposed during Super Bowl half-time in what came to be known as a “wardrobe malfunction.” The U.S. Court of Appeals for the Third Circuit in Philadelphia was instructed by the high court today to review the case again.

The Phily court threw out the fine last year on CBS’s argument that the Federal Communications Commission arbitrarily had redefined its indecency policy. The Supreme Court justices instructed the lower court to consider reinstating the FCC’s $550,000 fine against the network and its affiliates over the incident. The decision follows a 5-4 vote last week by the high court that upheld the FCC’s determination that the fleeting use of certain expletives constituted an indecency violation.

During Super Bowl half-time in 2004, Ms. Jackson was performing with Justin Timberlake, who grabbed her costume at one point in the show and pulled off a portion, exposing her breast. The FCC received more than 540,000 complaints, and fined CBS and the stations that aired the program--virtually all of them, since the Super Bowl is the most lucrative telecast of the year.

SCOTUS Backs FCC’s Fleeting Expletive Ruling
Court deems any interjectory use of curse words offensive
(April 28, 2009): The Supreme Court today voted 5-4 to uphold a federal law against spontaneous cursing on broadcast TV. The ruling reverses an earlier decision by a federal appeals court dismissing the FCC’s determination that adjectival S- and F-words referred to bodily functions and were therefore indecent.

The case focused on two incidents included in a March 2004 FCC dragnet decision to fine broadcasters $4.5 million for apparent indecency. In one, Cher dropped the F-word during a live broadcast of the 2002 Billboard Music Awards on Fox, and Nicole Ritchie let fly an S-word on the same program the following year. Both were aired on Fox.

Under federal law, indecent material must “describe or depict sexual or excretory organs or activities… [and] the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.”

The FCC was under the direction of former Chairman Kevin Martin when it issued the ruling against fleeting expletives. Such interjectory use was given a pass by his predecessor. Under Michael Powell, the FCC determined that Bono’s use of an exclamatory F-word on the 2003 Golden Globe Awards had no sexual connotation. The networks challenged the FCC’s sweeping indecency fines on several premises, including the First Amendment. The U.S. Court of Appeals for the Second Circuit in New York ruled that the FCC had insufficient grounds to levy fines for spontaneous cursing. The lower court did not take up the constitutional question. The high court justices have now directed it to do so.

Chief Justice John Roberts, Justices Anthony Kennedy, Clarence Thomas and Samuel Alito concurred with Justice Antonin Scalia, who wrote the decision. Dissenting Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer said the FCC failed to explain why it changed its policy on fleeting expletives. Scalia said the FCC’s course correction was appropriate.

“The agency’s reasons for expanding the scope of its enforcement activity were entirely rational,” Scalia wrote. “It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the commission said with regard to expletive use of the F-word, ‘the word’s power to insult and offend derives from its sexual meaning.’

“And the commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica,” the original 1978 case defining indecency. “Even isolated utterances can be made in ‘pander[ing,] . . . vulgar and shocking’ manners and can constitute harmful ‘first blow[s]’ to children. It is surely rational if not inescapable to believe that a safe harbor for single words would ‘likely lead to more widespread use of the offensive language.’”

Interim FCC Chairman Michael Copps hailed the decision in an official statement.

“Today’s Supreme Court decision in Fox is a big win for America’s families. The court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The court’s decision should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”

The Progress & Freedom Foundation, a D.C. think tank supported by CBS, NBC, Fox parent News Corp., ABC parent Disney, Google, Microsoft, Comcast and others, said the decision was a “blow to the First Amendment.”

“While the court decided this case on purely procedural grounds, its failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years,” PFF Senior Fellow Adam Thierer wrote. “Practically speaking, as Justice Thomas noted, what’s the point of continuing to apply a censorship regime to one of the oldest mediums--broadcast TV and radio--when kids are flocking to unregulated mediums in large numbers? At this point, we’re doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process.”

The NAB’s Dennis Wharton noted that broadcasters have been and will continue to be self-regulating.

“Regardless of today’s opinion, broadcasters will continue to offer programming that is reflective of the diverse communities we serve. Nonetheless, we’re disappointed the court majority seemingly failed to understand the need for clear and consistent regulatory policies, especially in light of the various ways audiences now receive broadcast programming. We continue to believe that voluntary self regulation--coupled with blocking technologies like the V-chip--is far preferable to government regulation of program content, and we question why speech restrictions should apply only to broadcasters.” -- Deborah D. McAdams

(Image from the American Constitution Society chapter at William & Mary School of Law)

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Posted by: Deborah McAdams
Fri, 05-01-2009 08:37 PM Report Comment
It is so great to see that the Supreme Court has told the broadcasters to clean up the air waves that are owned by the American people. I still believe the majortiy of americans would prefer to leave to the imagination some of the stuff played out on the screen. To broadcast programs that promote sex, violence toward women and the many other valuless programs is certainly doing nothing for our youth. From early in my life growing up in the 50's and 60's there were very few kids or adults that used vulgar language to get their message across. I didn't have to call somebody anything...if I wanted to get my message across I talked straight to him or them and it was resolved in a manner that did not need vulgarity to make the point. It is good to see that Copps decided to stand up and say what the real FCC is about. When the FCC came to life I believe in 1934 there were rules that a person who had a broadcast license had to live by, they had to report every 5 to 7 years what they had done for the community in that span of time to deserve their license back. That went by the way of the DoDo because there were too many self serving people involved who wanted less out of broadcasters and wanted to allow the air to be filled with canned music and talk, it was cheap and their buddies who supported their senater or house seat could make more money to put in the pockets.
Posted by: Deborah McAdams
Tue, 04-28-2009 07:19 PM Report Comment
"Today’s Supreme Court decision in Fox is a big win for America’s families." No, it's the exact opposite. This destroys the American family by shaming free speech and self-expression. Our youth are being encouraged to grow up constantly worried that someone is watching them that they need to please rather than letting them live a little.
Posted by: Deborah McAdams
Thu, 04-30-2009 10:42 AM Report Comment
Statement of William O’Shaughnessy Re: This Week’s Supreme Court Opinion On Fleeting Expletives April 30, 2009 “It appears that the Supreme Court is giving broadcasters ‘Undue Process.’ Instead of a decision on the constitutionality of the First Amendment, the Court dwells on the intricacies of the Administrative Procedure Act. Thus I’m afraid this week’s decision is Prologue rather than Epilogue … whose practical effect is to continue the dangerous status quo. By focusing on the procedural issue of whether the FCC explained its new approach to ‘fleeting and isolated’ words … the Court delayed the decision everyone should care passionately about: whether the FCC’s Indecency Policy is constitutional. Page 2 -> As an opinion about what a government agency has to do to change a prior policy, the decision is primarily fodder for lawyers. It is far more interesting if read as a rehearsal for the main event. Much more work has to be done on this Free Speech issue of fundamental importance for all Americans. The Commission should stay out of the censorship business.” William O’Shaughnessy is a former president of the New York State Broadcasters Association and was Chairman of Public Affairs for the National Association of Broadcasters in Washington. He operates two of the last independent stations in the New York area: WVOX and WVIP. He is the author of “AirWAVES” (1999) and “It All Comes Back to Me Now” (2001), collections of his radio commentaries, essays and interviews, published by Fordham University Press. “More Riffs, Rants and Raves” was released in April, 2004. He has just started his fourth volume: “AGAIN! Run That By Me One More Time” and is also presently at work on a study of Broadcasting and the First Amendment. Contact: Cindy Hall Gallagher 914-235-3279 cindy@wvox.com

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