WASHINGTON, D.C.—As has been expected since the U.S. Supreme Court issued its ruling in favor of the appellees in the FCC v. Fox Broadcasting and FCC v. ABC, Inc. cases last week, the Supremes have put their stamp of approval on the Third Circuit U.S. Court of Appeals decision last November that the Federal Communications Commission had overstepped its authority and violated its own rules in finding that the 2004 Super Bowl halftime show, which featured singer Justin Timberlake exposing fellow performer Janet Jackson's nipple for just over half a second, was indecent. CBS was fined $550,000 for letting the offending nip slip go out over the airwaves. (For the mathematically inclined, that's roughly $977,778 per second of tit exposure.)
What the high court actually did was deny certiorari to the FCC's appeal of the Third Circuit's decision in FCC v. CBS Corp., which essentially affirms that decision, although technically, the victory is one that only applies within the Third Circuit itself: Pennsylvania, New Jersey, Delaware... and the Virgin Islands.
While the full Supreme Court made no comment on its cert denial, it apparently would be improper to assume that they refused to hear the case for the same reason they gave in affirming Fox's and ABC's wins last week: That the incidents in question—broadcasts of the words "fucking" and "shit" and the seven-second look at Charlotte Ross's nude ass on NYPD Blue—all occurred before the FCC issued its "Golden Globe Order" which reversed the FCC's long-standing policy to ignore "fleeting" instances of vulgarity and nudity.'
"The Federal Communications Commission issued an order fining CBS $550,000 for broadcasting the nudity," stated Chief Justice John Roberts in his concurrence with the cert denial. "The agency explained that the incident violated the FCC policy against broadcasting indecent material, such as nudity and expletives, during the hours when children are most likely to watch television. The Third Circuit vacated the order, finding that it violated the Administrative Procedure Act [APA] as 'arbitrary and capricious' agency action."
What's puzzling is, while the FCC's order clearly did that, the Supreme Court's first decision in FCC v. Fox Broadcasting back in 2009 specifically rejected that argument, which formed the basis of the Second Circuit's ruling in the case: That the FCC had been arbitrary and capricious in its application of its indecency rule to Fox. That's why the Supremes remanded the case in the first place, thus allowing the Second Circuit to consider the constitutional issue of whether the FCC had violated Fox's First Amendment rights, which it found that the FCC did—and which the Supreme Court studiously ignored in its second Fox decision! So it's a bit strange to find Roberts essentially affirming the Second Circuit's logic here.
"The [Third Circuit] court held that the FCC's order represented an unexplained departure from the agency's longstanding policy of excusing the broadcast of fleeting moments of indecency," Roberts continued. "I am not so sure. As we recently explained in FCC v. Fox Television Stations, Inc., the FCC's general policy is to conduct a context-specific examination of each allegedly indecent broadcast in order to determine whether it should be censured. Until 2004, the FCC made a limited exception to this general policy for fleeting expletives. But the agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not." [Citations omitted]
Um... no; wrong again, Mr. Chief Justice. The FCC, as recently as 1997, found no problem with NBC broadcasting an uncut version of Steven Spielberg's WWII holocaust tale Schindler's List, which contained copious nudity. Moreover, according to a Wikipedia entry, TV stations in Los Angeles and San Francisco were broadcasting fleeting glimpses of naked human bodies beginning in the early 1980s, again with no FCC sanction.
In fact, what was likely far more influential on the FCC's finding a violation of its indecency policy in this case was the 1,405,419 complaints the agency received about the tit exposure, the overwhelming majority of which—99 percent!—were generated by Parents Television Council, a religious pro-censorship group that was virtually unknown until its anti-Jackson campaign.
"As every schoolchild knows, a picture is worth a thousand words," Roberts continued, "and CBS broadcast this particular picture to millions of impressionable children."
Of course, that begs the question of what the children would be impressed with? After all, nudity is a natural part of human existence, and many of those kids would have seen the "offending organ" up close and personal for about the first year of their existence, while they were breastfeeding, and for years thereafter take baths with their mothers with no resulting emotional harm. Indeed, there's certainly an argument to be made that if children were exposed to naked human bodies earlier in their lives, they wouldn't be so hung up about tits and ass during their adolescent years.
"I nonetheless concur in the Court's denial of certiorari," Roberts concluded. "Even if the Third Circuit is wrong that sanctioning the Super Bowl broadcast constituted an unexplained departure from the FCC's prior indecency policy, that error has been rendered moot going forward. The FCC has made clear that it has abandoned its exception for fleeting expletives. Looking ahead, it makes no difference as a matter of administrative law whether the FCC's fleeting expletive policy applies to allegedly fleeting images, because the FCC no longer adheres to the fleeting expletive policy. It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure... Any future "wardrobe malfunctions" will not be protected on the ground relied on by the court below."
So there's the threat, adult American citizens in 2012: Mr. Supreme Court Chief Nanny Justice John Roberts has just affirmed that in all future cases where someone on live TV may "drop trou" or a female may lift her t-shirt, exposing her tits, even if the broadcaster played no role whatsoever in the exposure, it's okay with him if the FCC levies an "indecency fine" on the network and each of its affiliates—fines that can now total $325,000 per incident per station!
And no matter how gently Justice Ruth Bader Ginsburg may suggest, as she did in her concurrence to the Fox Broadcasting/ABC decision and repeated here in her concurrence with the denial of cert, that "The Court's remand in FCC v. Fox Television Stations affords the Commission an opportunity to reconsider its indecency policy in light of technological advances and the Commission's uncertain course since this Court's ruling in FCC v. Pacifica Foundation," there's at least one member of the Supreme Court—in fact, its leader—who'll have no truck with the idea that American citizens of any age can hear someone say "fuck" or "shit," or see a naked ass or tits or cock, and just chalk it up to human experience and think no more about it.
So the next time you hear some jackass Republican talking about how Obama wants to turn the U.S. into a "nanny state," just remember the words of the Chief Justice of the United States Supreme Court!
