BOB GARFIELD:
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This week saw a great judicial victory for the unalienable right of celebrity breasts to be accidentally momentarily exposed. That is, of course, what happened to Janet Jackson in the infamous 2004 Super Bowl “wardrobe malfunction” that resulted in a 550,000- dollar FCC fine against CBS.

But this week, a federal appeals court threw out the fine, the second time in a year a court has invalidated an FCC indecency sanction. In 2007, a different federal panel ruled that the FCC could not fine Fox for so called “fleeting expletives” uttered by Cher and Nicole Richie at the Billboard Music Awards.

Adam Thierer, a senior fellow at the Progress and Freedom Foundation, who wrote an amicus brief arguing against the FCC, says the fine was overturned because the FCC has consistently been more lenient in the past.
ADAM THIERER:
What the court meant by that is that basically for the last 30 years, the FCC has not engaged in serious fines or regulation for fleeting words or images that may have appeared on radio or television. So, for example, an extended Howard Stern monologue would be fined but maybe a brief slip of the tongue by a newscaster would not.

And here the FCC seemed to be changing policy in a fairly significant way. The court said you can't do that without having some more substantive justification for that and clearly announcing it to the world before you start dishing out fines to broadcasters.
BOB GARFIELD:
I want to briefly go back to 2004 and the alleged “wardrobe malfunction,” which created [LAUGHS] an awful of controversy over whether Janet Jackson and Justin Timberlake had actually rigged the thing to happen intentionally. You know, putting aside whether it was truly an accidental 9/16th of a second exposure, what was the FCC’s rationale for issuing a fine for such a tiny sliver of time?
ADAM THIERER:
Well, the FCC ruled that this very small exposure of skin essentially was a gross violation of public morals and indecency standards that had been on the books for some time. Now, of course, these rules and standards are anything but clear. It’s always an eye of the beholder problem.

But in this decision most recently from the court this week, they basically punted on that issue. It’s impossible to label this a great First Amendment victory, because what the court has done is told the FCC, you've messed up on procedural grounds. But the court has nothing to say in this ruling about whether or not this really was unjustifiable or really indecent.

But, of course, this all could end up at the Supreme Court. Now, will they rule strictly on procedural issues about how the FCC enforced the rule or will they get into those substantive issues raised by the old Pacifica case involving the late George Carlin, Seven Dirty Words and the whole indecency regime?

That’s a question none of us really have an answer to right now, and so we have to wait and see what happens when it gets kicked to that level.

BOB GARFIELD:
Pending a Supreme Court decision, is it possible that the FCC will react by saying, okay, you considered this a capricious and anomalous fine? Okay, we will now start finding many other breaches for even more insubstantial infractions and we'll cover that procedural question quite neatly.
ADAM THIERER:
It very well could be the case that the FCC responds to this by going out and trying to fine other types of programming in significant numbers. But they've been put on warning now by the courts about how far they can go here.

But, moreover, there’s just a general backlash that’s coming, I think, from a lot of different quarters now about the sensibility of this regulatory regime going forward and the increasing unfairness of it all for traditional broadcast radio and television operators.

I mean, what really kills me about this debate, and it was not mentioned in the court case at all but I think is important, is that this whole regime is premised on the idea of, quote, unquote, “protecting the children” from potentially objectionable fare.

Well, whatever sense that rationality for regulation might have had, say, three or four decades ago, one wonders how much sense it makes in an age when the kids are turning away in fairly large numbers from traditional broadcast platforms and towards new media platforms like the Internet, social networking, DVDs, cable and satellite, all of which are unregulated.
BOB GARFIELD:
And, of course, at any given moment, just one click away from porn.
ADAM THIERER:
And that’s correct. And so when the FCC fines broadcast radio and television operators in the name of protecting children and the children have bolted to different media platforms, one wonders is the FCC really protecting children or is it simply protecting adults from their own choices?
BOB GARFIELD:
Adam, thank you so much for joining us.
ADAM THIERER:
Thanks for having me.
BOB GARFIELD:
Adam Thierer is a senior fellow at the Progress and Freedom Foundation in Washington.
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