When it comes to regulation of communications, usually the FCC and the Congress have it all wrong. They want to regulate speech but let indecency have a free pass. That is the exact opposite of their Constitutional mandate. Here is the truth about the matter. The federal government has no constitutional authority to regulate speech. Period. If somebody wants to say something Congress or the Executive or Judicial branch doesn’t like, that’s just too bad.
The states have much broader authority to regulate speech, though even they are not allowed to suppress political speech.
But there is one aspect the Congress does have the authority to regulate, and that is indecency. The Supreme Court’s extension of the word "speech" to include nonverbal expression notwithstanding, the Congress definitely does have the authority to regulate the broadcast of indecent materials. This is the one area where Congress can and should step in.
So, naturally, when the FCC finally, absurdly belatedly, does so, everyone gets all up in arms about it, predicting the End of Days if the FCC’s decision is allowed to stand.
Allow me to disagree with the doomsayers.
The case at hand is the FCC’s rather paltry $550,000 fine of the Columbia Broadcasting System for broadcasting a vulgar, repugnant partial striptease by rock songstress Janet Jackson as abetted by Justin Timberlake, before TV’s largest audience of the year, during halftime of the 2004 Super Bowl.
It was something that absolulely should never have happened, and despite its protestations, the TV network that broadcast it is fully responsible. In its argument today before the Third U.S. Circuit Court of Appeals, CBSs’ lawyer said the incident was "unscripted, unauthorized and unintended."
So? They broadcast it, and they could have prevented it (and quite easily). They’re responsible.
Their lawyer also said the FCC fine has had a "profoundly censorious effect" on the broadcasting industry by discouraging them from showing material that the FCC might judge indecent.
Uh, yes, that’s the point of fining people who commit the offense. It’s exactly the same as arguing that we shouldn’t punish a murderer because it will have a "profoundly censorious effect" on other potential murderers.
Plus, their lawyer clearly doesn’t watch much TV if he thinks the medium has suddenly become all prim and proper in the past three years. Even allowing for some rhetorical hyperbole, the claim that anything the FCC has done has had a "profoundly censorious effect" on TV broadcasters is positively grotesque.
CBS also argued, "by fining the network the FCC had abandoned a policy of avoiding penalties for ‘fleeting’ or ‘isolated’ images and expletives that might violate indecency rules," according to Reuters.
That’s another specious argument. The FCC has the authority, derived from Congress, to decide what the policy on indecency is. What CBS broadcast clearly violated the policy, and they should indeed have been fined for it. Now, CBS is claiming that it couldn’t have known in advance that the FCC would object to them showing Janet Jackson’s sagging boobie to an audience including millions of children. Their lawyer must have had a very difficult time keeping himself from bursting into laughter while making that argument. CBS is not only a hugely successful broadcaster, it has led the primetime ratings for several years in a row.
The people at CBS know precisely what they are doing, and they knew it in 2004 when they gave a worldwide stage over to MTV, Janet Jackson, and Justin Timberlake. Any reasonable person would err on the side of caution if they wanted to avoid broadcasting indecent material, and obviously CBS did not do that or anything like it. They hired the antinomian sleazeballs of MTV to do the halftime program, and as the FCC lawyer noted at today’s hearing, the show was a "highly sexualized performance" even before the breast exposure.
CBS wanted buzz, and they got it, and $550,000 is surely not a very high price to pay for it.
Of course there’s a very good chance that the court will overturn the fine, given that our courts tend to give as much respect to the Constitution as they do to ordinary citizens. But CBS is still wrong, the FCC is still right, and we need more, not less "profoundly censorious effects" on the indecency that dominates our airwaves today.