I have a really high tolerance for legal briefs and wonky ruminations on First Amendment issues and broadcast indecency policy — I love reading the raw legal rationale for justifying or barring government-imposed curbs on free speech.
It was exciting to learn on Monday that the 3rd Circuit Court of Appeals had vacated the FCC’s decision to fine CBS $550,000 for the Boob Flash of Destiny by Janet Jackson during her duet with Justin Timberlake during the 2004 Super Bowl halftime show. The fine was voided and the case remanded back to the FCC for a new review in light of the appeals court’s lengthy guidelines provided in Monday’s ruling, as Variety’s William Triplett reports. (It’s gonna be a big year for indecency policy geeks. Another case will be heard at the Supreme Court during its 2008-09 sesh.)
The Jackson-Timberlake incident turbo-charged what was already a mounting crusade in Washington, at the FCC and from self-appointed media watchdogs (the Parents Television Council by any other name) that has been politically motivated. It’s been a red herring to push the buttons of certain voting blocs and a way to distract from the more substantial media policy questions facing the FCC (ownership limits, anyone?).
But even I found the 102-page decision on the Jackson fine impenetrable. (Read it here for yourself.) The case for the legal precedent and factors considered in the appellate review of the FCC’s ruling on Nipplegate were rendered in mind-numbing detail in the opinion penned by Chief Judge Anthony Scirica
The basic argument boiled down to the FCC being out of line ("arbitrary and capricious" in the court’s words) for taking a major departure from its past policy on indecency cases involving a "fleeting" instance of something untoward being said or shown on screen. The FCC was free to make a major change in its indecency policy, but it had to give broadcasters plenty of advance warning that it was doing so, the court reasoned.