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Super Bowl Nudity to the Supreme Court

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It feels like it was a couple of Super Bowls ago, but the Janet Jackson “wardrobe malfunction” at the half-time of the game happened on February 1, 2004. That’s eight Super Bowls ago.

Nevertheless, it was just this week that the Federal Communications Commission (FCC) finally asked the U.S. Supreme Court to take the case (FCC v. CBS).

Just to refresh our memories, the FCC fined CBS $550,000 as a result of the incident, but the U.S. Court of Appeals for the Third Circuit dismissed the fine, saying the agency acted “arbitrarily and capriciously” under the Administrative Procedure Act (APA). The court later rejected the FCC’s request for an en banc hearing prompting the FCC to take its appeal to the Supreme Court.

On its petition for a writ of certiorari (the vehicle that is used to ask the court to hear a case), the FCC asks the Court to hold this case pending its decision in FCC v. Fox, the fleeting expletives case, as its resolution might have some bearing on this case.

Although it is true that the Fox case will have much relevant to say for this case, we hope the Court takes this case, also. Nudity on the people’s broadcast airwaves should be dealt with independently and swiftly.

The substantive argument of the FCCs petition correctly points out that, “Federal law has long prohibited the broadcast of ‘obscene, indecent, or profane language …'” The brief makes clear what is one of the most remarkable facts about this whole controversy. “The FCC’s rules currently prohibit licensees of radio and television stations from broadcasting ‘any material which is indecent’ between the hours of ‘6 a.m. and 10 p.m.'”

So it is not that broadcasters cannot air this type of material at all, but that they cannot do so during the so-called “family hour.” Remember also that this is only on the people’s broadcast airwaves it doesn’t touch cable.

Broadcasters complain that the FCC had been a bit more lax on their enforcement of decency standards in the past, so they acted “arbitrarily” when they impose these fines, the argument goes. But FCC had given plenty of notice. Broadcasters knew what the standard was.

The problem is that for broadcasters, the standard can only move towards more indecent material, never towards less. For years they never complained as the standards got more and more lax, yet as soon as the standard gets a bit more strict they cry “foul.”

The FCC said it looked to the following “principal factors” to make the determination of indecent material:

(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (and) (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

It made clear that “Each indecency case presents its own particular mix of these, and possibly other, factors, which must be balanced to ultimately determine whether the material is patently offensive and therefore indecent.”

There is nothing unreasonable or “arbitrary” about that standard.

The Super Bowl nudity was premeditated sexually explicit content presented to a family-oriented, unexpected audience, only to pander and for its shock value. And judging by the “unprecedented number” of complaints filed against CBS after the incident, the public (who owns the broadcast airwaves) agrees.

The fact that it was a “fleeting image” should not allow broadcasters to violate the people’s trust, and more importantly, federal law.

We hope the Supreme Court takes the chance to make that clear.