Call it a victory for the rule of law. And a victory for common sense.
On July 21, the U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s fine against CBS televisions stations for airing the Janet Jackson Super Bowl incident.
As you might remember, this was the so-called “wardrobe malfunction” involving Justin Timberlake that allegedly traumatized millions of children watching the Super Bowl halftime show. Activist groups mobilized, Congress jumped in, and the FCC swiftly cracked down on “indecency” in an abrupt departure from its decades-long policy of restraint toward “fleeting” incidents.
However, the Third Circuit concluded that the FCC had reversed its policy in a manner that was arbitrary and capricious without adequate notice to broadcasters. In doing so, the Commission had violated the Administrative Procedure Act, the court found. In essence, the court told the FCC that it can’t do whatever it feels like doing in response to the winds of public opinion or the grandstanding of certain politicians.
That’s the right decision. Yet the ruling was greeted in many quarters with reactions ranging from keen disappointment to outrage, as if the indecency crackdown were an end that should be justified by any means. As John Eggerton reported in Broadcasting & Cable, even the FCC chairman was “surprised” and “disappointed.” In our judicial system, however, the rule of law trumps personal feelings and public opinion – even the “public opinion” of mass e-mail campaigns orchestrated by activist groups.
So far, the Second Circuit and now the Third Circuit have rebuked the FCC for its recent approach to indecency enforcement. In response to the Third Circuit’s decision, FCC Chairman Kevin Martin noted “the importance of the Supreme Court’s consideration of our indecency rules this fall.” He’s right about that – and we trust the Supreme Court will be the next judicial body to get it right.