Say what you will about the FCC, but you have to admit they’re a scrappy bunch when it comes to pursuing their crackdown on broadcast “indecency.” First they persuaded the U.S. Supreme Court to hear the case they lost in the U.S. Court of Appeals for the Second Circuit – the one about Cher and Nicole Ritchie uttering a couple of verboten words during Fox’s “Billboard Music Awards” shows.
Now the FCC crowd is asking the Supreme Court to hear yet another indecency case they lost – this one in the Third Circuit involving the infamous Janet Jackson wardrobe incident during the 2004 Super Bowl halftime show on CBS.
The Supreme Court hasn’t even ruled on the Fox case yet, and in fact heard oral argument only about a month ago (Nov. 4). But the word on the street is that the justices seemed sympathetic to the FCC’s arguments in Fox – perhaps even sympathetic enough to rule in the agency’s favor. Handicappers are predicting that a vote favoring the FCC would be slim (say 5 to 4) and decided on narrow procedural grounds, rather than reaching the constitutional issues. IF the vote goes the FCC’s way at all, that is.
The common wisdom, of course, is that predicting Supreme Court decisions based on oral argument is a fool’s errand. So, an unreliable prediction that foresees such a tepid outcome would seem a double whammy, enough to give one pause.
But not the FCC. They reportedly are buoyed by the oral argument in Fox to the point that they want to pile on with the Janet Jackson matter. The Commission did, however, request that the High Court defer a decision on whether to hear the Third Circuit case until after the Court rules on the Second Circuit case.
This begs the question of why the Commission petitioned the Court at this particular time at all. (The Court is not likely to issue a ruling in Fox until next spring or summer.) Maybe this is just the Commission’s way of warning broadcasters that the indecency watchdog is not about to roll over and play dead. To this observer, however, it seems a transparent ploy that might well prove all bark and no bite.