While last week's Supreme Court decision seems to foreclose the argument that the FCC's tighter indecency rule is impermissibly arbitrary or that the FCC gave insufficient notice of its changed policy to CBS, the unique facts of the CBS/Janet Jackson case may convince the Third Circuit to reaffirm its decision. Only those with the sharpest eyes could have spotted the live broadcast of Jackson's fleetingly exposed n*pple during the allegedly innocent "wardrobe malfunction." Viewers with Tivo or other recording devices, after learning of the controversy, could rewind and zoom and take a longer and closer look, but those actions presumably would not have exposed children to anything that their parents didn't want them to see -- unless the parents allowed their kids to control the Tivo.
CBS maintains that "there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material." That's probably true, although the FCC might argue that indecency was foreseeable to CBS as soon as it booked Justin "I'm bringing sexy back" Timberlake on the same stage as Janet "Nasty" Jackson. Still, does a fine of more than a half million dollars reasonably reflect the harm caused to public morality by the brief exposure of a n*pple?
Ultimately, these cases are about the FCC's attempt to impose Ronald Reagan values in the Age of Obama.* While the court decisions are interesting, they are likely to be rendered moot in the next few years by FCC rules that take a less puritanical view of indecency -- a view that reflects the reality of contemporary values, not just those of the vocal religious right.
*This is not to suggest that President Obama has any opinion about Janet Jackson's nipple or its fleeting broadcast, but only that times and values have changed a bit in the interval between Reagan's presidency and Obama's. It's nonetheless amusing to note Jesse Walker's fear that Obama's FCC will "creates intrusive new rules by fiat." That's exactly what the FCC did when it revised its indecency policy in 2004. As Walker recognizes, the current FCC "has been no friend to either free enterprise or free speech." Walker's concern that Obama might favor FCC policies that encourage diverse ownership of media or that grant more licenses to low powered radio stations raises policy questions that are more complex and considerably less troubling than the simplistic policies that guide the current FCC's idiotic obsession with indecency.
