Dissent on Indecency

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The judges who rebuked the FCC today for cracking down on the famous “wardrobe malfunction” weren’t just citing technicalities; they seem to stop just short of calling the commissioners “prudes.”

As William Triplett writes in Variety, the ruling states, “The commission’s determination that CBS’ broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy. Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency.”

Nevertheless, even as the judiciary dismisses such concerns, it’s been hard for the networks to fight the political will of lawmakers, especially on what has been a no-lose issue for politicians, whether Democrats or Republicans. The vote to increase FCC’s fines tenfold passed overwhelmingly in 2006, and by unanimous consent in the Senate. It’s even become a standard practice among Democratic presidential candidates to amp up their criticism of Hollywood content as the general election approaches, for it appeals to conservative voters and doesn’t seem to carry that great of risk that they will lose their base of entertainment donors. Usually lost in the rhetoric is the reality of cable TV, the Internet, video games, etc.

The Supreme Court will take up the issue of fleeting expletives later this year, and it will be interesting to see if a ruling in favor of the networks on First Amendment grounds has the net effect of ultimately diminishing the FCC’s authority — just the opposite of what it has tried to do under chairman Kevin Martin.

Time’s James Poniewozik calls out what he sees as the central part of the ruling:

“Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

“In other words, if you’re going to exempt fleeting obscenities, you can’t exempt fleeting obscenities except when there’s an embarrassing media frenzy.”

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