Court's FCC slap-down proof agency has no clothes


George Carlin would have loved this.

The late comedian always appreciated how ironic it was that his diatribe on the arbitrary nature of censorship, "Seven Words You Can Never Say on Television," led to a U.S. Supreme Court decision affirming the FCC's authority to determine exactly what people can't say on broadcast TV.

Now, three decades after the Carlin ruling, the FCC's recent abuse of that power has hit a pair of common-sense roadblocks. After last year's major decision overturning fines for one-time expletives, the 3rd Circuit Court of Appeal ruled Monday that the commission and chair Kevin Martin "acted arbitrarily and capriciously" in fining CBS stations $550,000 for airing Janet Jackson's right breast for nine-sixteenths of a second during the 2004 Super Bowl halftime show.

In other words: What a bunch of boobs.

"It's an important victory for reason," says University of California-Irvine Law School dean Erwin Chemerinsky, a First Amendment expert. "There are certainly lines to be drawn on this issue, but this isn't one of those instances."

Those who question whether "Nipplegate" was about anything other than fueling the country's culture wars should read the court's 102-page decision. Absent proof that CBS knew what was coming from Jackson and accomplice Justin Timberlake, the FCC's legal argument, in essence, was that the broadcasters should have anticipated that something like this might happen and taken extraordinary precautions to prevent it. Nevermind that the FCC, in the 30 years since the Carlin case affirmed that indecency over the public airwaves can be restricted by the government, had employed a consistently hands-off enforcement policy for isolated incidents at live events. Leniency toward fleeting indecency applied to words rather than images, the government argued -- but the court rejected that theory outright.

Still, it wasn't a surprise that Martin chose to stake his crusade on the Jackson reveal. It featured an easy villain (Hollywood celebrities) and was broadcast live to 90 million viewers, many of them children, becoming the most replayed event in TiVo's history and prompting more than 540,000 complaints.

Cultural lightning rod, sure. But was a split-second of accidental flashing really an actionable offense? Those complaint letters paint a somewhat distorted picture. CBS, led by lead attorney Robert Corn-Revere, smartly analyzed the government's files and pointed out that more than 85% of the letters came from single-issue advocacy groups like the Parents Television Council. Twenty% were outright duplications, with some letters appearing in the file up to 37 times.

"It sends the message that the FCC should pay less attention to these kinds of concerted efforts," says Andrew Schwartzman, president and CEO of the Media Access Project, which filed a brief supporting CBS on behalf of Creative Voices in the Community, a coalition of writers and producers. "It raises questions about who really represents the average viewer."

Importantly, because Jackson and Timberlake were considered independent contractors, CBS wasn't responsible for controlling their behavior even if they planned the nefarious boob-flash. If I'm a studio standards and practices lawyer, I just got a little less nervous about what happens at such live broadcasts as awards shows and sporting events.

Or at least I'm less nervous for now. These issues remain unresolved. The fleeting expletives case, which concerns the F-word and S-word uttered by Cher and Nicole Richie, respectively, during the 2002 and 2003 Billboard Music Awards on Fox, was accepted for review by the Supreme Court, which could overturn the appeals court or create whatever new standard it pleases. The PTC already is urging Martin to appeal the Jackson case to the high court. Another long-running indecency case over "NYPD Blue" is pending and poses the awkward question of whether buttocks are considered a sexual organ.

Beyond these absurdities, the real issue is whether in the age of unlimited cable, satellite and Web transmissions the FCC should still be allowed to decide what's appropriate for the airwaves. With each new technology, that monopoly on community standards becomes more tenuous.

For now, though, we get a waste-of-time saga over a "wardrobe malfunction," which sounds like one of those corporate-speak phrases Carlin would eviscerate in a monologue. "This decision would have given him a good, solid four minutes," Schwartzman jokes.