2004 wardrobe malfunction could lead to the end of FCC content regulation

In 2004, when then FCC chairman Michael Powell watched Super Bowl XXXVIII live from Reliant Stadium in Houston, TX, and was outraged by Janet Jackson’s “wardrobe malfunction” during the half-time show, he could not have imagined that his follow-up actions might backfire and end all of the FCC’s content regulation over broadcast television.

Yet, that could very well happen if the FCC appeals a recent court decision that reverses a commission rule on unscripted expletives for live broadcasts. A three-judge appeals court this month found that the rule — part of a Bush administration’s crusade on television indecency —c reates a “chilling effect” on free speech.

The Obama administration’s FCC is now faced with a major series of “what if” questions. If they appeal the decision to the U.S. Supreme Court, there’s a major risk that the commission could lose all control over broadcast content.

The FCC is now “reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment,” said Julius Genachowski, the commission’s chairman.

An appeal would take the Supreme Court back to a 1978 ruling in the FCC vs. the Pacifica Foundation. That was the decision that upheld the FCC’s finding that George Carlin’s classic “Seven dirty words” radio monologue was indecent. At that time, the court left open the question of whether the use of “an occasional expletive” could be punished.

In 2009, in another decision involving FCC content authority, both Justices Clarence Thomas, on the right, and Ruth Bader Ginsburg, on the left, indicated they both had questions about the First Amendment issues in the FCC’s indecency policy and whether existing standards were still relevant.

The appeals court picked up on that theme in the decision, noting that the media landscape is much different in 2010 than it was in 1978.

“Technological changes have given parents the ability to decide which programs they will permit their children to watch,” the appeals court said. Noting that it was bound by the Supreme Court’s Pacifica decision, the court said that it nevertheless wondered why broadcasters were still subject to restrictions that, in the case of cable television, would be found to violate the First Amendment.

Before 2004, the FCC consistently held that occasional, spontaneous use of certain words that were otherwise prohibited did not violate its indecency standards. Under Powell, however, the FCC tightened its standards.

Congress followed, by increasing the potential fine for broadcasters for indecency violations tenfold, to up to $325,000 per episode. However, pay television broadcasters were not affected, allowing them far greater range in free speech.

The appeals court ruling found the FCC policy was “unconstitutionally vague” and created a “chilling effect” that violated the First Amendment protection of free speech.

“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” U.S. Circuit Judge Rosemary S. Pooler wrote in the decision. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”