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FCC's Arbitrary, Capricious Jackson Ruling Ruled Capricious, Arbitrary

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It was four and a half years ago that Janet Jackson’s “wardrobe malfunction” in the Super Bowl halftime show introduced an innocent nation to horrors of the female breast, inspired a frenzy of election-year mania over broadcast decency, and led media observers to wonder if a newly aggressive FCC would reverse the trend toward more and more licentious broadcast-network programming. Now it’s 2008, and I just recently watched the pilot for CBS’s The Ex List, which contains more, and more descriptive, references to the vagina than an OB-GYN convention. And today, a federal appeals court struck down the FCC’s fine against CBS Corp. for the Jackson incident altogether.

Whatever the libertarian or cultural objections to a government fine for a breast flash, the court’s reasoning was simple and sensible: the FCC arbitrarily and suddenly broke its own precedent of not fining brief instances of obscenity:

“Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

In other words, if you’re going to exempt fleeting obscenities, you can’t exempt fleeting obscenities except when there’s an embarrassing media frenzy.

That’s probably the most important part of the ruling. Many of the most ludicrous examples of self-censorship came because broadcasters worried the FCC would reverse itself, after the fact, on its precedents whenever there was public pressure. (For instance, after Janet TV stations refused to air Saving Private Ryan, whose broadcast the FCC had allowed in the past, for fear that it would suddenly change its mind and slap a profanity fine on them.)

Hopefully, this will send the message to the FCC that it can’t shift policy ex post facto every time a pressure group mounts an e-mail campaign. But who knows? It is an election year, after all.

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