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A Decent Decision, But Fleeting?

Today's post is from Frederick S. Lane, author of The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court. Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His next book will be People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit

LaneFour and a half years ago, during the halftime show for the 2004 Super Bowl, Justin Timberlake and Janet Jackson set off a heated national debate about televised decency when Timberlake pulled off part of Jackson's bustier and revealed her right breast.

The global exposure of Jackson's breast was remarkably brief -- roughly half a second -- but more than long enough to send the nation's moral watchdogs into orbit. The following morning, Federal Communications Chairman Michael Powell (the son of former Secretary of State Colin Powell) made the rounds of the morning television talk shows and promised a swift and thorough governmental investigation. The Timberlake/Jackson "flash dance" proved to be a political boon for many in Washington: the controversy enabled Chairman Powell to divert attention from his failed and much-criticized efforts to promote media consolidation, and the FCC's new-found willingness to punish indecency was a boost for President Bush's re-election campaign. Much more detail on the political fall-out of the half-time show is available in the opening chapter of my 2006 book, The Decency Wars: The Campaign to Cleanse American Culture (Prometheus Books 2006).

Normally, the First Amendment protects all speech that is not obscene, which is a higher standard than mere indecency. However, because broadcasters operate under a license from the government to use public airwaves, the federal courts have upheld the ability of Congress to impose greater restrictions on what can be said or shown. Those restrictions do not apply to subscription services, which explains why cable television and satellite radio can be more explicit than broadcast television or radio.

On September 22, 2004, the FCC handed down a $550,000 fine against Viacom, Inc., the owner of CBS, which broadcast the 2004 Super Bowl.

The FCC rejected Viacom's argument that the exposure was "fleeting," and ruled that "the nudity here was designed to pander to, titillate and shock the viewing audience." Viacom had plenty of company in the regulatory doghouse that election year: from 2003 to 2004, the FCC increased the amount of its indecency fines from roughly $400,000 to more than $7 million.

Viacom appealed the FCC's decision to the Third Circuit Court of Appeals, and on July 21, 2008, the Court overturned the indecency fine. In a lengthy and carefully-written decision, the Court concluded that the FCC had a long history of not imposing fines for "fleeting" occurrences of indecency. The Court agreed that the FCC has the authority to change its policy to prohibit even "fleeting" indecency, but said that the agency "acted arbitrarily and capriciously" by applying the standard to Viacom without giving adequate notice of its change of policy. Even more damning was the Court's "reluctant conclusion" that the FCC had intentionally "revised" agency history to suggest that its new "fleeting utterance" policy had been in effect before the Viacom decision. The Court concluded that thirty years of FCC history was to the contrary.

The Third Circuit did not address the underlying question of whether it is constitutional for the FCC to even have a policy that can assess huge fines for brief or fleeting instances of indecent speech.

However, that question was squarely presented to the Second Circuit of Appeals in FCC v. NBC Universal, Inc. During a live broadcast of the 2003 Golden Globe Awards on NBC, U2 singer Bono gave an acceptance speech in which he told viewers that "this is really, really, fucking brilliant. Really, really, great." The FCC used the case to announce a new policy prohibiting even fleeting or excited utterances that it considered profane. In NBC's case, because the agency was clearly announcing a new rule, it did not assess a fine. However, it encouraged networks to implement delayed-broadcast technology to permit the bleeping of accidental profanity.

NBC and a variety of other networks appealed the FCC's new policy on "fleeting" indecency, and on June 4, 2007, the Second Circuit issued a decision agreeing that the policy was "arbitrary and capricious."

Among other things, the Court concluded that the agency had failed to articulate legitimate reasons (or really, any reasons at all) for changing its long-standing approach to fleeting indecency.

The Court also noted that the FCC's approach to brief indecency may not survive constitutional challenge, in large part because the agency has already applied its policy inconsistently. "We are sympathetic to the Networks' contention," the Court said, "that the FCC's indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of 'fuck' and 'shit' are presumptively indecent and profane, repeated use of those words in 'Saving Private Ryan,' for example, was neither indecent nor profane."

The FCC appealed the Second Circuit's decision to the Supreme Court, and the high court agreed to hear the case in its upcoming 2008-09 term. It is unlikely that the Supreme Court will actually take up the constitutional issue of whether the FCC should continue to penalize indecent speech; instead, the Court's focus will be on the procedural behavior of the FCC: can it decide, with little or no justification, that a single utterance of a "dirty" word is damaging enough to the allegedly fragile psyches of children that any occurrence should be punished?

Although this is not quite the Court that the Religious Right would like to decide this issue, it may be close enough. If the Court upholds both the FCC's censorious policy and Pleasant Grove City, Utah's public endorsement of the Ten Commandments, it will be quite a year for the Religious Right -- and a somewhat less promising one for the First Amendment.

Frederick S. Lane recently appeared on Vermont Public Radio. You might also be interested in reading his previous posts on Beacon Broadside, including The Perils of Parables, The Petrification of John McCain, and Happy Birthday, Justice Stevens.