David Phillip/AP
Justin Timberlake and Janet Jackson are seen during their performance at the 2004 Super

High Court Draws Line on Television Obscenity

May 06, 2009 07:30 AM
by Liz Colville
Sparked by the Janet Jackson “wardrobe malfunction” case, recent Supreme Court rulings on obscenity have been praised by family groups and condemned by free speech advocates.

CBS Has So Far Escaped $550,000 Fine

The 3rd U.S. Circuit Court of Appeals in Philadelphia has been asked to reconsider the ruling that followed what “may be the most controversial fraction of a second in television history,” The New York Times reported.

The Federal Communications Commission (FCC) levied a $550,000 fine against CBS, the host of the 2004 Super Bowl, for Janet Jackson’s wardrobe malfunction, which amounted to nine-sixteenths of a second exposure of her right breast.
But in 2008’s CBS v. FCC, the court ruled that the fine would not be imposed because the FCC had “strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency,” The Associated Press reported. The FCC then appealed the ruling to the Supreme Court.

But review of the case was delayed while the Supreme Court examined another case, FCC v. Fox Television Stations, which dealt with the FCC’s rule on “fleeting expletives.” That case was decided on April 28, and the court ruled narrowly in favor of the FCC.

Background: The Janet Jackson case: CBS v. FCC (2008)

The 2004 Super Bowl halftime show was produced by MTV Networks and had an audience of about 90 million viewers, according to the brief for CBS v. FCC. In the show, Jackson and Justin Timberlake performed Timberlake’s song “Rock Your Body” to what the FCC deemed “sexually suggestive choreography.” Following the lyric “gonna have you naked by the end of this song,” Timberlake “simultaneously [tore] away part of Jackson’s bustier,” revealing her breast for nine-sixteenths of one second. Despite the brevity of the mistake, it resulted in “a large number of viewer complaints” to the FCC.

MTV was banned from producing Super Bowl halftime shows and the FCC sent CBS a Notice of Apparent Liability ordering them to pay a $550,000 fine. CBS then submitted an opposition to the notice. In 2006, the FCC “affirm[ed] its preliminary findings,” calling the exposed breast “graphic and explicit,” “shocking and pandering,” and “fleeting.” The FCC also called CBS’s broadcast of the mishap “willful.”

Chief Judge Anthony J. Scirica argued in CBS v. FCC that “when unscripted indecent material occurs during a live or spontaneous broadcast, as it did here, the FCC should show that the broadcaster was, at minimum, reckless in causing the indecent material to be transmitted over public airwaves.”

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Recent Developments: Supreme Court supports FCC’s one-word expletives policy

On April 28, the Supreme Court made a ruling that can be said to have paved the way for this week’s recommendation in the Jackson case. In FCC v. Fox Television Stations, the Supreme Court “narrowly upheld the FCC’s policy threatening fines against even one-time uses of curse words on live television,” AP reported.

The case “involved two broadcasts where performers uttered unscripted obscenities,” FindLaw’s blog Courtside explained: a Billboard Music Awards show and an episode of the reality show “The Simple Life.” Following the obscenities, the FCC changed its regulations so that even “fleeting expletives … would constitute ‘indecent language’ and violate the law.”

Delivering the opinion of the court, Justice Antonin Scalia argued that the FCC’s “prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives…makes entire sense.” It “seems to us an exercise in logic rather than clairvoyance,” he said.

But the court did not argue the constitutionality of the FCC rule, so “the regulations might come before the court again on a constitutional challenge,” FindLaw’s Kevin Fayle wrote.

Opinion & Analysis: FCC v. Fox; FCC’s role in free speech

In 2008, prior to the hearing of FCC v. Fox Television Stations, groups including the American Civil Liberties Union and the Directors Guild of America asserted that the FCC “has no business regulating any speech short of outright obscenity,” Broadcasting & Cable reported. They added that the Supreme Court “cannot avoid the constitutional issues that are at the heart of this case.” But as FindLaw noted, the court did not discuss the constitutionality of the FCC rule.

Following the April 28 ruling, the Parents Television Council praised the Supreme Court’s decision. “The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free,” PTC President Tim Winter said. “We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families.”

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