You may remember the halftime show at the 2004 Superbowl, in which Justin Timberlake ended a suggestive duet by tearing the covering off of Janet Jackson's breast. Her breast was revealed for "nine-sixteenths of one second," but the result was outrage. The FCC, which received 542,000 complaints, imposed an "indecency" penalty of $550,000 on CBS – the maximum penalty of $27,500 for each station owned by CBS. On Monday, July 21, 2007, the Third Circuit Court of Appeals struck down the FCC's action, much to the dismay of those concerned about protecting family values. It's not that the court supports TV nudity. Instead, it was concerned with fairness and reasoned decisionmaking – and with protecting private actors against the awesome power of the government.
For nearly thirty years before the outrage perpetrated by Timberlake and Jackson, the FCC followed an announced policy under which it did not penalize "isolated or fleeting material." Hard to image anything more fleeting than the revelation of Jackson's breast, but the FCC took action anyway. The court said this was unfair and violated a basic principle of administrative law – an agency "cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure." Seems only fair, especially when the agency suddenly wants to penalize someone for behavior that it had ignored in the past. In fact, it is essential to our freedoms that government not penalize us without first telling us what sort of behavior would result in a penalty.
It's important to understand that the Third Circuit did not say the FCC could never adopt its new "fleeting indecency" policy. That's a different question. Typically, an agency can change an existing policy of this sort as long as it gives notice to the public and uses the right procedures. So this really is not an example of libertine courts favoring lascivious behavior.
The court also said that the FCC could not hold CBS responsible for the behavior of Timberlake and Jackson because the statute penalizes "willful" behavior, and (essentially) CBS had not acted willfully, event though the performers had. In fact, CBS had tried in various ways to avoid indecency, including issing instructions, implementing a five-second audio delay and even checking Jackson's costume. Again, the court sought to assure that people are not penalized when they have tried to comply with requirements and when the statutory standard for a penalty has not been met.
Ultimately, these are questions about fairness and freedom. It's not fair to penalize someone you've previously expressly let others get away with. And it's illegal to penalize someone for behavior that doesn't meet the statutory standard for the penalty. Without these protections, none of us can be sure we're safe from charges by a fickle government.
