FCC Gets Punked Again

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.