Here’s hoping the U.S. Court of Appeals for the Third Circuit delivers Federal Communications Commissioner Kevin Martin a black eye in the CBS “wardrobe malfunction” case heard by the appellate judges last week.
Judging by the questions the three judges posed to the FCC’s lawyer, things may not go well for the agency, which is defending a $550,000 fine it assessed against the network after the 2004 Super Bowl halftime show, which featured a 9/16—second-long glimpse of Janet Jackson’s breast.
One of the judges asked the FCC’s Justice Department lawyer, Eric Miller, why it was fair to fine CBS when the network had no foreknowledge that Ms. Jackson would flash a breast during the show. That judge also questioned whether CBS could be held accountable for the acts of contractual performers who aren’t strictly network employees.
CBS, in its defense, pointed out that after the Super Bowl, it implemented video delay technology to complement the audio delay technology it had ready for Ms. Jackson’s performance.
Those questions indicate skepticism on the part of the judges.
We should acknowledge that the agency says CBS should have taken more steps to make sure Ms. Jackson and her fellow performers didn’t stray from the script for the show.
Perhaps that’s true, but Ms. Jackson has said the wardrobe malfunction was planned after the final dress rehearsal. And the FCC argues that it has the authority to try to protect broadcast viewers from graphic images.
The tone of the judges’ questions, in combination with a ruling earlier this year that overturned an FCC attempt to assess fines against broadcasters who aired fleeting profanity, should have Mr. Martin putting his finger to the wind.
Tactically speaking, perhaps Mr. Martin has achieved his ends by pushing this case—forcing broadcasters to think twice before they air potentially racy fare. But that kind of arm-twisting shouldn’t be in the government’s playbook when it intrudes into the realm of free speech.