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New ruling on “indecency” broadcasts

NOTE: The Supreme Court has agreed to hear, with argument this Fall, perhaps in November, an appeal by the Federal Communications Commission seeking to regain the power to ban the use of any single vulgar word on radio and TV broadcasts (FCC v. Fox Television, et al., 07-582). The potential impact of that case may have increased on Monday, with a ruling by a federal appeals court blocking an FCC policy penalizing a broadcaster for the use of any single “indecent” visual, non-verbal, image.


Ruling on an incident that is widely familiar in popular culture — the “wardrobe malfunction” during a performance at a televised pro football Super Bowl game, the Third Circuit Court in Philadelphia on Monday struck down a government policy against TV broadcast of a single fleeting image. The case involved the exposure of one of singer Janet Jackson’s bare breasts (apparently done intentionally) during the halftime performance on Feb. 1, 2004.

The three-judge panel was unanimous in CBS Corp., et al., v. FCC (Circuit docket 06-3575) in nullifying a $550,000 penalty against the CBS network and its affiliates for an allegedly “indecent” broadcast.  That part of the ruling found that the Commission had switched its policy from one of tolerance of fleeting ‘indecent” images to one of prohibition, without a genuine explanation for the shift.  The ruling did not bar the FCC from adopting the same ban, if it acted anew, but that option may be clouded by the pending case in the Supreme Court on the agency’s power to outlaw brief incidents of vulgarity. CBS, though, could not be punished for the 2004 broadcast if the FCC did adopt the policy for future application.

The Circuit Court split 2-1 in sending the case back to the FCC to give it a new chance to find — but without any financial penalty or other punishment of CBS — that broadcasters may be held to blame in the future for such fleeting displays of an “indecent” image. 

The Court acted in a 102-page opinion, including a three-page partial dissent.  Chief Circuit Judge Anthony J. Scirica wrote the main opinion, joined by Circuit Judge Julio M. Fuentes. Circuit Judge Marjorie O. Rendell dissented on the part of the ruling sending the case back to FCC for another look. “We have held that the instant fine was improperly imposed,” Judge Rendell wrote. “There are no further proceedings necessary.”

CBS’ broadcast of the 2004 halftime show occurred about two months before the FCC announced that it was abandoning its long-standing policy of not penalizing broadcasters for isolated or fleeting use of vulgar words on the air.  That timing factor was critical in the Circuit Court’s ruling. When it shifted its policy in early March 2004, the FCC made clear that broadcasters would not be held liable for fleeting “indecency” prior to that time.

In Monday’s ruling, the Circuit Court rejected an argument by the FCC that it had always had a policy against fleeting “indecent” images, as opposed to words.  The prior policy of tolerance, the Circuit Court said, never had an exception for vulgar images. “The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images,” the Court noted.

In fact, the Court suggested in a footnote that the FCC might not have the authority, under federal law, to treat words and images differently.  The law’s indecency provision, the Court noted, refers to utterances of language.  If FCC wants to fit images into its authority, to reach “all varieties of indecent content,” it must “treat words and images interchangeably,” the opinion said.