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FCC To Appeal CBS's Third Circuit Win

Supremes May Decide On Legality of Jackson's Tits

FCC To Appeal CBS's Third Circuit Win

WASHINGTON, D.C. - In what is apparently a last-ditch attempt to justify its obsession with the alleged ill effects of fleeting nudity, the Federal Communications Commission (FCC) has decided to petition the U.S. Supreme Court to overturn the commission's July 21 loss in the Third Circuit Court of Appeals over the momentary exposure of Janet Jackson's tit during the 2004 Super Bowl half-time show.

The FCC no doubt has its eye on the fact that as of Jan. 20, the man in the White House will no longer be a fundamentalist Republican, and that incoming President Barack Obama has already dispatched a transition team to examine the current philosophy and internal workings of the Commission, which currently has three conservative Republicans and two moderate Democrats. So even though the U.S. Supreme Court heard argument less than three weeks ago regarding a similar FCC obsession in the FCC v. Fox Broadcasting case, the Commission is trying for what attorneys call a "second bite of the apple" by petitioning the high court to hear what is, on its merits, a nearly identical case, though admittedly involving imagery rather than words. Indeed, in what appears to be an attempt to balance its fear of a philosophical change in the White House with what it sees as its religio-conservative mandate, Commission chairman Kevin Martin has asked the high court to take no action on the petition until after an opinion is rendered in the Fox case.

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As AVN noted in its earlier story , the FCC has reason to be optimistic about the Fox decision. Though there's little question as to which way Chief Justice John Roberts and his conservative cronies Antonin Scalia, Clarence Thomas and Samuel Alito will vote, and though Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Anthony Kennedy seemed disposed to uphold the Second Circuit's rejection of the FCC's new "fleeting expletives" rule, Justice Steven Breyer asked no questions during the argument and remains a "wild card" regarding his views on the issue.

What makes the case of CBS Corp. v. FCC slightly different from the Fox case is that it deals with an image rather than words. The Second Circuit gave great consideration to whether the FCC had violated its own rules by levying multi-million dollar fines on offending broadcasters where it had historically taken no action regarding fleeting expletives, thereby opening the door for the Supreme Court to decide the case strictly on procedural grounds, and the Third Circuit, in CBS, followed a similar route, though it too questioned the FCC's rational for targeting such material.

"During a span of nearly three decades," wrote Judge Anthony J. Scirica for the majority, "the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency."

"The FCC contends its restrained policy applied only to fleeting utterances - specifically, fleeting expletives - and did not extend to fleeting images," the Court continued. "But a review of the Commission's enforcement history reveals that its policy on fleeting material was never so limited.  The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy."

It's notable that the FCC's claims about the reason for its lack of action regarding fleeting expletives in CBS differs strikingly from its recent Supreme Court argument in Fox, where the FCC contended that it always had a policy of targeting expletives, fleeting or not, but had considered other, contextual issues in deciding not to fine earlier "fleeting" violations.

In CBS, the Court pointed to the FCC's Feb. 21, 2006 omnibus order, referred to as the "Golden Globes rule" after singer Bono's "fucking brilliant" exclamation during the 2003 Golden Globes telecast, which supposedly changed fleeting expletives from legally benign to actionable.

"[T]he FCC urges another reading of Golden Globes, perhaps less obvious yet still plausible," the Court wrote, "which interprets Golden Globes as addressing only the broadcast of fleeting expletives, not other fleeting material such as brief images of nudity. Further, the Commission contends its fleeting material policy, as initially adopted, was limited to fleeting words and did not extend to fleeting images."

While the Third Circuit, however, didn't buy that alleged distinction, it spent more time dealing with the procedural issues, as noted in our earlier article , as well as the question of whether the technology which now allows broadcasters to impose a several-second delay on live video broadcasts was capable of preventing the tit exposure back on 2004.

"We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts," a CBS spokesperson said in response to the FCC's petition filing. "Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades."

For free speech advocates, however, the FCC petition was another disappointment in the quest to apply rationality to the government's apparent vendetta against all things sexual in public.

"It's hardly unexpected but it's still disappointing that the government continues to pursue issues like this," said Andrew Schwartzman, president of Media Access Project, a free speech advocacy group.






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Mark Kernes

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