Indecency Goes to Federal Court

While we were all busy fattening up babies for sacrifice to our pagan deities on the eve of the solstice, the U.S. Appeals Court in the Second Circuit (New York) took a peek at the indecency issue. Attorneys for the FCC and the Fox network argued their respective positions regarding the 2002 Billboard Music Awards broadcast, during which Cher said "Fuck 'em" in reference to her critics, and the 2003 Billboard Music Awards, when Nicole Richie explained that it wasn't "so fucking easy" to get "cow shit out of a Prada purse."

This court hearing was the moment I had been waiting for ever since the FCC's 2004 post-nipplegate freak-out: finally a group of federal judges are examining the FCC's unjust manner of assessing broadcast indecency.

Check out the expletive-laden testimony via streaming video right here on C-Span's site.

I was raising my fist in the air, yelling "fuck 'em!" at my computer, as I watched Judges Pooler, Leval, and Hall lay into the FCC's counsel pretty heavily, questioning everything from the commission's decision reversal a few months back to their repeated assertion that the V-chip is useless, despite the FCC's ongoing endorsement of the parenting tool.

The Second Circuit court did not announce when it would come to a decision on the case, but if this hearing is any indication, first amendment junkies like myself might be pleasantly surprised. Another exciting appeals case looms in the future: the Third Circuit Appeals Court will examine the 2004 Super Bowl wardrobe malfunction incident. I'm at the edge of my seat.

Comments

[scott pilutik]

Thanks for the link to the video Liz. The Second Circuit panel did indeed seem to buy Fox's arguments; and Fox's lawyer, Carter Phillips did an amazing job of presenting the overarching issue, which is that the FCC's recent rulings cannot be reconciled, appear arbitrary and capricious, and if they are not somehow reined in by the judiciary, will just invent a new arbitrary standard next year or the year after. Looking at past opinions of the judges on the panel, each has a decent record on First Amendment issues. Politically, Pooler and Leval are Clinton appointees, and Hall is a recent Bush appointee--but Hall recently wrote an opinion finding that a city noise ordinance used to prohibit a street preacher's speech was not narrowly tailored and thus unconstitutional. Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006). This same "overbroad" rationale is what we're hoping wins out here.

I've attended oral arguments in the Second Circuit on prior occasions and never thought I'd hear its rarified air pierced with as many instances of "fuck" and "shit". The FCC's lawyer was the only one who didn't use the terms, while Leval appeared to enjoy repeating them.

I'm not certain as to what the precise issue is in CBS's Janet Jackson complaint, but I would assume it would relate to the size of the fine (as opposed to the mere imposition), which, iirc, was as large as it was based on the FCC's agency theory--that Timberlake and Jackson were employees of CBS for the purpose of the half-time show, and so their intent and knowledge imputes to CBS.