CBS, if you would remember, was hit hard by the FCC a few years ago for Janet Jackson’s wardrobe malfunction. I thought they would pay the fine and walk away, but it seems CBS now things it has a First Amendment right to broadcast indecent content.
From the Hollywood Reporter:
CBS told a federal court Monday that the government’s new “zero tolerance” policy for indecent broadcasts is threatening to choke off free speech.
In its opening brief with the 3rd U.S. Circuit Court of Appeals in Philadelphia, CBS contends that the commission’s policy “is flatly inconsistent with the bedrock principle that First Amendment freedoms require breathing space to survive.”
The case is one of two legal battles this month that will go a long way to deciding whether the government can slap broadcasters with a big fine and threaten their licenses to operate because of a slip of the tongue. The other case is in the New York circuit and involves Nicole Richie’s use of the word “shit” during the 2003 Billboard Music Awards, which aired on Fox.
On Sept. 22, 2004, the FCC said that CBS and Viacom, its parent company at the time, knew or should have known that Janet Jackson’s breast would be exposed during a halftime show at the 2004 Super Bowl. CBS, MTV — which produced the show — Jackson and fellow performer Justin Timberlake have all said that the moment was unplanned, though Jackson and her choreographer added a “wardrobe reveal” just before the show aired, according to commission and court documents. The FCC proposed fining all 20 of CBS’ owned-and-operated stations the maximum $27,500 for the indecent broadcasts.
“The orders at issue in this case cannot be reconciled with either the prior three decades of FCC precedent or, more importantly, the decisions of federal courts articulating the First Amendment limitations” of the FCC’s power over indecent speech, CBS said.
Now that, my friends, is a load of crap. First off, in both the Fox/Richie and CBS/Jackson incidents the networks claimed the incidents where accidents, and not intentional. Claiming First Amendment coverage on something you never intended to do is a bit of a stretch. Secondly, the FCC decency laws are well published and documented, so retroactive relief from judgements should not even be on the table.
The core issue that CBS is trying to capitalize on is the line between obscenity, which is not protected by the first amendment, and obscenity which is.
The Family Research Council weighed in on the topic yesterday:
As they see it, CBS has a “right” to air primetime smut. In its 76-page suit, the network states that the “blink and you miss it” nature of the episode was “largely unrecognized for most of the broadcast audience.” Tell that to FCC Chairman Kevin Martin, who spent weeks sorting through thousands of complaints from families–all demanding that CBS be held accountable. Stung by the $550,000 fine, CBS now claims the agency is choking its First Amendment Rights. Meanwhile, families are the ones in a stranglehold, trying desperately to hold the line on network pollution with little help from broadcasters. Fortunately, the FCC is backed by a law that reminds the networks that their definition of “free speech” is going to cost them.
Corporate (or non-individual) free speech is always a touch subject, and one not to be dismissed or taken lightly. It appears to me that CBS is only try to wiggle its way free of 1/2Million FCC fine, and set the stage for future push back against the FCCs stated policies. It is sad but true that “Sex Sells” and CBS and related networks see the opportunity to cash in any weakening of the FCC indecency laws.
