Indecency Revisited

WASHINGTON: By spring, a handful of judges will decide what is proprietary on broadcast television. One federal court is mulling the split-second exposure of a breast on primetime TV, while another contemplates the popularity of swear words among rock musicians and celebutantes.

The breast in question belongs to singer Janet Jackson, who exposed it during the half-time festivities of Super Bowl XXXVIII in 2004. CBS happened that year to be carrying the game, the most-watched and lucrative few hours on television.

In terms of production, nothing is held back for the Super Bowl. Every piece of cutting-edge gear across the country is employed in the coverage. The CBS tech team broke ground at Super Bowl XXXVIII with a wireless HD camera, but everything, including the game itself, was overshadowed by the fraction of a second it took the director to order a cutaway from Jackson's breast. For the engineers that lived and breathed the game for nearly a year, it was bewildering.

After racking up a $550,000 fine from the FCC, the breast footage made its way to the U.S. Court of Appeals for the Third Circuit in Philadelphia, where judges will determine if it meets legally defined parameters of broadcast indecency.

In the Second Circuit Court of Appeals in New York, the utterance of expletives on broadcast TV is under review. In that case, Fox is appealing FCC censures prompted by F-bombs dropped during separate telecasts of the Billboard Music Awards. Cher used the four-letter profanity during the 2002 telecast; Nicole Richie in 2003. Oral arguments in the Fox case were presented in December and a decision is expected at any time. As of mid-January, orals had not been scheduled for the case of the flashing breast.

Both court cases represent appeals of the FCC's March 2006 Omnibus Order, which levied an unprecedented $4.5 million in fines for broadcast indecency violations. In addition to the Super Bowl fine, CBS and more than 100 of its affiliates were slapped with proposed fines totaling $3.6 million for an episode of "Without a Trace" depicting a teen sex orgy. Six other programs drew individual fines totaling $355,000, and four more--including the Billboard broadcasts--were deemed "indecent and/or profane." Networks censured for speech indecency joined Fox in its appeal, even though some of the original determinations in the Omnibus Order were later abandoned.


The legal framework for indecency rests on a 29-year-old precedent set by the Supreme Court in Pacifica. The high court then reasoned that because broadcast signals were "uniquely pervasive," the federal government had a right to regulate content. Thus, anything aired between 6 a.m. and 10 p.m. that describes or depicts "sexual or excretory organs or activities," is patently offensive by community standards and lacks artistic or educational merit is subject to FCC fines.

Those fines were increased tenfold last June when President Bush signed a bill raising the penalty to $325,000 for each individual violation, with a cap for $3 million per program. Seven months after the bill became law, no fines had been issued; most broadcasters stepped lightly after the Super Bowl cataclysm.

However, a recent incident during a National Football League play-off game refueled activists calling for a crackdown on indecency. The Jan. 13 telecast on Fox featured a crowd shot focused on a New Orleans Saints fan wearing an F-word emblazoned t-shirt. The Parents Television Council, responsible for many of the indecency complaints filed with the FCC, was outraged. PTC President Tim Winter said the shot was intentional.

"The person wearing the profane t-shirt was chosen by the Fox Network's broadcast crew from more than 70,000 spectators in the stadium," Winter said. "The camera operator selected that particular woman and the director and/or producers of the event made an affirmative and conscious decision to air the shot from that particular camera, forcing the 'F-word' into millions of homes."

A Fox spokesman apologized for the incident, saying it was "unintentional," but the PTC wasn't having it.

"How can families take the Fox apology seriously," Winter said, "when they are suing in federal court demanding the 'right' to air the F-word?"

The PTC also picked up on a report by Frank Ahrens of The Washington Post, who noticed the fan shot wasn't live, but rather a recorded reaction to a play that just happened. The Council urged the FCC to fine Fox without waiting for the Second Circuit opinion.

It remained to be seen at press time if the t-shirt shot would influence the court's ruling on the Billboard F-bombs. When the Billboard telecasts aired, the FCC did not consider an interjectory use of the word indecent. Likewise in 2003 when U2 lead singer Bono said "f-ing brilliant" on the "Golden Globe Awards." Then in March 2004 amidst the Super Bowl fallout, the commission reversed itself and said any use of the F-word was indecent. The interpretation was applied to the Billboard broadcasts in the Omnibus Order, but no fines were levied because both telecasts aired before the final Golden Globe ruling.

Representing Fox in the Second Circuit, Carter Phillips of the Washington law firm Sidley Austin said the Golden Globe order was an unconstitutional expansion of the legal definition of indecency.

"The FCC's new, expanded indecency regime is arbitrary and capricious for two fundamental reasons," he states in the Fox court brief. "(1) the FCC has not even attempted to justify--indeed, it refuses even to acknowledge--the radical change in its policy; and (2) the FCC's decisions are inherently contradictory and provide no guidance to broadcasters as to what speech is punishable and what speech is not."

On the second point, while Golden Globe holds that all uses of the F-word are actionable, the FCC let it pass in "Saving Private Ryan" on the basis of artistic value. The FCC attorney arguing the case in the second circuit also conceded during orals that the word would not be deemed indecent in the context of news.

On par with the FCC's track record in court, the three-judge panel appeared to be skeptical of the commission's approach. Again, however, the Second Circuit grilling took place before Fox aired the Saints fan bearing the words "F**k da Eagles" across her chest. (Asterisks inserted.)


Whatever the court decides about swearing, it's unlikely to make a difference in the Third Circuit. In fact, legal experts noted that the FCC pushed to fast-track the CBS case because it's more cut-and-dry than the F-word. The breast is considered a "sexual organ."

The Philadelphia court ultimately rejected the FCC's request to speed the process. The same federal bench stayed the commission's media ownership rules three years ago and awaits justification for those regulations.

In the Super Bowl case, FCC is maintaining CBS should have anticipated what came to be known as the "costume malfunction."

In a 75-page brief filed with the court, the FCC argued that "CBS ignored numerous warning signs that the performers might behave inappropriately, including a public statement from Jackson's choreographer promising that the show would include 'some shocking moments,'" the document states.

CBS attorneys argued in reply briefs dated Jan. 8, that "shocking moments" was a far cry from certain nudity:

"Even indulging the utterly implausible notion that a reasonable person should have interpreted the choreographer's hyperbole as signaling that a star performer might engage in the wholly unprecedented act of exposing part of her breast on live television, there is no evidence that CBS so understood the reference or that it failed to take reasonable precautions."