In a victory this Wednesday for freedom of speech, an appeals court rejected the Federal Communications Commission’s (FCC) decision to punish CBS for airing an expressive portion of Janet Jackson’s broadcast performance during the 2004 Super Bowl. The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled by 2-1 (CBS Corp et al v. FCC, 3rd U.S. Circuit Court of Appeals, No. 06-3575) that, by imposing a penalty, the FCC “arbitrarily and capriciously” departed from prior policy that exempted “fleeting” indecency from sanctions and that the FCC “improperly imposed a penalty on CBS for violating a previously unannounced policy”.
The FCC released an antagonistic and harsh statement that says the federal agency is disappointed by the decision and intends to use “all the authority at its disposal” to force broadcasters to serve the public interest when they use the so-called public airwaves. A CBS spokeswoman said the network hopes the FCC will “return to the policy of restrained indecency enforcement it followed for decades.” The FCC fined CBS $27,500 for each of the 20 stations it owned when part of Janet Jackson’s anatomy was accidentally and briefly exposed during the halftime performance.
In 2008, the 3rd Circuit voided the fine, but that decision was vacated when the Supreme Court in 2009 upheld the FCC policy in a case brought by Fox News’ parent company, News Corporation, though that 5-4 ruling did not decide whether the policy was constitutional. In this week’s decision, Judge Marjorie Rendell said that the FCC had maintained a “consistent refusal” to treat fleeting nude images as indecent for 30 years, and that there is no justification for punishing CBS, according to Reuters. No word on whether the FCC will appeal the ruling. CBS and News Corporation are outstanding examples of businesses that refuse to sanction their own demise and both companies deserve credit for defending their free speech against the United States government’s censorship. The FCC should not exist because the agency is fundamentally inconsistent with freedom of speech in the first place. But this week’s Philadelphia court decision, which goes to show that fighting on principle is good, practical business, is better than the alternative.