Federal Appeals Court Slams FCC, Overturns Fine for Super Bowl "Wardrobe Malfunction"

A three-judge panel of the U.S. 3rd Circuit Court of Appeals has overturned a $550,000 FCC fine leveled against CBS over the Janet Jackson/Justin Timberlake 2003 Super Bowl halftime "wardrobe malfunction." This ruling, alongside the June 2006 U.S. 2nd Circuit ruling overturning FCC fines on the basis of fleeting expletives, may make it possible for networks to broadcast truly live content, sans tape delays, without risking crippling FCC fines. For small, independent stations--those least likely to be able to use tape delays when broadcasting a live event, as well as least likely to be able to afford to pay FCC fines--these rulings are a godsend.

(Or at least they are for now. The U.S. Supreme Court has decided to hear an appeal on the 2nd Circuit fleeting expletives ruling, and the decision it hands down next year could either limit or reinforce the significance of this week's 3rd Circuit ruling.)

Let's be frank here: What the rulings do not do is allow the intentional use of nudity or strong expletives on broadcast television. Both rulings focus on the mitigating practical problems that can be expected to arise when one is broadcasting a live event, and in any case the most meaningful content restriction is and has traditionally been imposed by advertisers, not by the FCC; basic cable networks are subject to no FCC content regulation, but are no more likely to display nudity or air expletives during prime time than their broadcast counterparts. For large networks, the financial burden of an FCC fine is negligible compared to the financial burden of lost advertising revenue.

The free market, in other words, has done a very effective job of limiting the sort of content that the FCC has sought excuses to clamp down on over the past several years. Whether there's still too much sex and profanity on broadcast television is a matter of opinion. I think there is (there wouldn't be if more people complained to advertisers), but I also think glamorized death and mutilation is much more dangerous to young minds than award speeches and musical performances. That the current FCC attacks sex and unfettered speech, but welcomes violence, should come as no surprise to anyone familiar with the administration's eerily similar priorities on other policy issues.

By the time the U.S. Supreme Court rules on the FCC's authority to regulate fleeting and unexpected indecency next year, it may be a moot point. The 44th president, regardless of party, will bring with him a new FCC board and, we may hope, more sensible priorities.