For the second time this year, a federal court has ruled against the Federal Communications Commission and ruled in favor of shattering every barrier of decency on television. A few months ago, the Second Circuit Court of Appeals in New York ruled in favor of fleeting profanities thrown carelessly on network TV. Given that Hollywood could defend all profanities as "fleeting," that ruling opens the door for F-bombs galore, any time, anywhere.
Now, the Third Circuit in Philadelphia has ruled the same for fleeting nudity. Nothing is sacred on television - except the profane.
The FCC's $550,000 fine against 27 CBS-owned stations for the infamous and deliberate Janet Jackson breast-baring during the halftime show of the 2004 Super Bowl is now reversed. The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience." That finding is beyond preposterous. What was not shocking about sudden nudity on the most watched television broadcast of the year, in front of an audience stuffed with millions of children?
But in effect, what the judges were saying is that since the Enforcement Bureau of the FCC has been a steady, ongoing farce of decency protection for thirty years, it must always and forever remain a joke. Would the public accept a ruling like this about other regulators, about air pollution or water pollution, instead of TV pollution?
In their ruling, the judges make absolutely no allowance for the fact that indecency on television has grown pervasive by leaps and bounds over the last thirty years. It's so pervasive that the shock is often dulled by the consistency of an increase in sex, violence, and filthy language.
But the Janet Jackson incident was different. The audience was shocked, and the amount of protest was historic. The controversy surrounding the incident yielded a record-breaking 540,000 complaints to the FCC in the weeks following the game. Switchboards and mail boxes on Capitol Hill were overwhelmed with angry protests. One Senator told me privately that no issue ever generated more constituent outrage than this - and he didn't sit on any media oversight committee.
But the judges had the audacity to question the authenticity of the protesters. They sneered in print that "the record is unclear on the actual number of complaints received from unorganized, individual viewers" as opposed to advocacy groups. They took every complaint and shredded it and threw the confetti back in the public's face.
"Like any agency, the FCC may change its policies without judicial second-guessing," the judges wrote. But judicial second-guessing is all these courts have to offer. The judges are second-guessing not just the regulators, and not just the Congress, which voted to increase FCC fines ten-fold after the Janet Jackson incident, but the credibility of the public itself.
Disturbing signs are now emerging that the next administration - no matter which party - will be bowing before Hollywood and its fat-cat lobbyists and waving the white flag of surrender on policing nudity and profanity on television. At a recent forum in Washington, representatives of both Barack Obama and John McCain insisted their candidates would step away from FCC Chairman Kevin Martin's attempts to draw attention to the problem of broadcast indecency.
Speaking for Obama, former Clinton FCC chairman Bill Kennard claimed "We have a lot of headlines about the Janet Jackson case, but it really doesn't address the key issue, which is how we can protect our families and our kids from harmful content." Wouldn't fines discourage broadcasters from allowing profane "mistakes"? But Kennard, like every slick telecom lobbyist in Washington, insisted on the absurd line that the V-chip and other technological frauds can help parents protect their children. No V-chip would have - could have - stopped millions of children from being flashed by Janet Jackson. Kennard knows that, of course. But lobbying means never having to say you're being honest.
Kennard also unfurled the other line every libertine uses, arguing that since profanity and explicit sex are spreading across every other media platform, from cable and satellite TV to the Internet to cell phones, it's now outmoded to try and regulate the indecency on broadcast television. Blow up every dam, and the let the flood begin.
Sadly, the representative for John McCain was equally useless. John Kneuer completely agreed with Kennard. The legal framework for indecency enforcement was "overdue for examination." The framework is outdated, created long before cable and satellite TV. He proclaimed the need for a new framework that "all parties and consumers can understand."
We are currently headed toward a framework that all consumers should understand. It's very simple: "You're on your own."