Paul Allen Files Amended Patent Lawsuit; Shows It's Even More Ridiculous Than We Originally Thought

Janet Jackson's Wardrobe Malfunction Leads To FCC Malfunction: Claims Broadcasters Give Up 1st Amendment Rights

from the fcc-malfunction dept

Wed, Dec 29th 2010 4:01pm — Mike Masnick

Would you believe that the FCC, CBS and the courts are still fighting over the FCC's right to fine CBS over Janet Jackson's infamous "wardrobe malfunction" during the half-time show of the Superbowl in 2004 (yes, seven years ago). There have actually been a series of related cases bouncing up and down through the court system, trying to establish whether or not the FCC's policies on "fleeting expletives" or "fleeting nudity" are arbitrary and if they violate the First Amendment. A court had originally found the FCC's policies to be arbitrary and tossed them out. The Supreme Court, in a related but different case (focusing on the fleeting expletives), ruled extremely narrowly that the FCC was allowed to change its policies, but did not rule on the constitutionality of the policy itself. The Second Circuit appeals court then ruled that even if the rule change was allowed, it still violated the First Amendment. From that, the court then asked -- if such rules on fleeting expletives are not allowed -- does that also cover fleeting nudity -- but that involved a separate case involving a scene of a bare rear end on NYPD Blue. But, of course, the Janet Jackson case, in the Third Circuit, also is relevant here as well.

Which brings us mostly up-to-date, other than the latest news in the Janet Jackson case, which is that the FCC is now trying to claim that broadcasters give up some of their First Amendment rights when they get a government license to broadcast over public airwaves. This seems like a huge stretch as a legal interpretation, which would have serious implications for anyone using public airwaves. I don't recall the First Amendment saying "Congress shall make no law... except if it involves public airwaves." Either way, as the article linked above notes, this will all be going back to the Supreme Court eventually.

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Filed Under: first amendment, free speech, janet jackson, obscenities, wardrove malfunction
Companies: cbs, fcc

36 Comments

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Rose M. Welch (profile), 29 Dec 2010 @ 3:54pm

Only seven years?
This whole thing is stupid. If you don't want your child to watch nudity or hear expletives, turn your TV off. No one is forcing you to have a television, cable, or a lack of parental controls.

And before anyone asks, I have three children (9, 7, and 4) so I absolutely understand what it's like to parent children.

The free expression of Janet and Co. is more important than the hardship of monitoring TV for my kids (not that seeing her chest was any more harmful than seeing mine was).
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Cathy, 29 Dec 2010 @ 4:30pm

It's not a new idea
When I was a mass communications major eons ago (where eons = about 15 years) I read some stuff by Ithiel de Sola Pool, who was ahead of his time in his work relating to electronic communications systems. Anyway, he had noted that the First Amendment had generally been applied very differently depending on the type of media the regulation was trying to reach.

See this excerpt from his "Technologies of Freedom" book at http://books.google.com/books?id=BzLXGUxV4CkC&pg=PA2&lpg=PA2&dq=ithiel+de+sola+pool+doma in+of+print&source=bl&ots=8FmrfnXjDt&sig=sNj8FAfkMIsmsgEjwSD6zzkoI5Y&hl=en&ei=ot AbTbjMKpP4sAPm3_W3Ag&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCIQ6AEwAA#v=on epage&q&f=false

I agree with you that it's not a good thing, and the FCC is being completely absurd in its insistence on censoring, but it does have some precedent to look to in support of it.

(BTW, I hope I get bonus points for remembering something I read as an undergraduate...)
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Deniz, 29 Dec 2010 @ 4:44pm

Public airwaves
When we speak, we are using the "public airwaves". Our voices, and radio waves are the same fundamental things.

Trying to find loopholes to get around the First Amendment should be met with absolute outrage, specially when it comes from the people who represent "the public" as in the case of the FCC.
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abc gum, 29 Dec 2010 @ 4:48pm

So broadcasters are no longer people?
Awesome dude!
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ignorant_s, 29 Dec 2010 @ 4:51pm

Red tape
A broadcasting license I assume is considered a "privilege" license, and therefore the government can impose whatever restrictions as it sees fit. If you don't want to conform to the rules/regulations, well your business can take a hike. Liquor licenses, gaming licenses, professional licenses, all fall under this category.

The problem is that often the regulations surrounding these licenses are simply over-broad, arbitrarily applied, or just simply aren't coherent to the people trying to follow them.
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Anonymous Coward, 29 Dec 2010 @ 4:59pm

The FCC faces a mandate to make the airwaves safe for all of the citizens, including those under the age of 18. As such, broadcast media (over the air) such as TV and radio have always been subject to tighter restrictions. Cable networks do not face the same restrictions, as they are "controlled access" products.

It isn't really a first amendment issue because they are not curtailing legal speech. Obscenity has always been considered non-protected speech, and the community standard as applied by the FCC is very low. No swearing, no nudity, etc permitted, particularly before typical bedtime for younger children. While there has been some tolerance for programs on after 9 or 10 at night, it is still pretty tight in the world of broadcast TV.

The best example would be setting up a soapbox and using a megaphone to shout obscenities in the middle of a public street (on the sidewalk, so you don't obstruct traffic). You would likely be arrested for disturbing the peace, but you are more likely to get stopped if you are using obscene language.

Try playing porn movies on a video screen that can be seen by the public (say your store window). It would not be long before the TVs would get shut down and you would likely be arrested.

While porn in and of itself is legal (one recent AG refered to it as protected speech in some cases), it is not universally protected speech, as we are not permitted to disseminate it in a way that it can be seen by minors. In the same manner, broadcasters are not permitted to disseminate the material.

The FCC taking it to the max (fleeting cursing or accidental or fleeting nudity) likely cause the courts to rule against them. Extreme positions like the FCC has taken are almost entirely impossible to protect against, and cause no more or no less harm than your child hearing your neighbor cuss or catching a fleeting glance of a boob when some girl at the beach has a bikini malfunction.

Sadly, the US constitution has been interpreted as a series of absolutes, often entirely bizarre. It is why in order to preserve your free speech rights, you have to support the KKK, Westboro's God Hates Fags, and Glenn Beck's right to exist - at least when it comes to free speech issues.

Good luck with it.
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vivaelamor (profile), 29 Dec 2010 @ 5:02pm

Re: Only seven years?
"This whole thing is stupid. If you don't want your child to watch nudity or hear expletives, turn your TV off. No one is forcing you to have a television, cable, or a lack of parental controls."

Also, stop leaving the door open while singing sea shanties in the shower..
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DD, 29 Dec 2010 @ 5:07pm

I'd rather my kid see a boob than nonsensical violence, which is all over TV. We have are priorities all screwed up in this country. Boobs are good.
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Anonymous Coward, 29 Dec 2010 @ 5:51pm

Re: Red tape
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Steven (profile), 29 Dec 2010 @ 5:52pm

Rights
I'm not completely convinced that companies have 'rights', but one part of this is the same as the TSA mess and it really bugs me.

That is this idea the 'entity' can 'give up thier rights by doing x'. I'm sorry but that is complete and total BS. The only thing that can cause a person to lose their rights is the committing and conviction (via a fair trial) of a crime.
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Anonymous Coward, 29 Dec 2010 @ 6:14pm

Re: Red tape
You are right on this: Broadcasting isn't a right (aka, we can't all just start a radio station), there are a limited number of licenses available in each area, and are granted as a privilege, not as a right.
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Rose M. Welch (profile), 29 Dec 2010 @ 6:31pm

Re: Re: Only seven years?
Why? It's awesome when my kids sing sea shanties in the car later on. (Literally, they just were.)
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Rose M. Welch (profile), 29 Dec 2010 @ 6:34pm

Re: Red tape
Liquor licenses, gaming licenses, professional licenses, all fall under this category.

You mean that the right to sell liquor, run slots, and fix my toiler are guaranteed by the Constitution? AWESOME!
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Rose M. Welch (profile), 29 Dec 2010 @ 6:36pm

Re:
tl;dr but I did see this above.

It isn't really a first amendment issue because they are not curtailing legal speech. Obscenity has always been considered non-protected speech...

Janet Jackson's boob isn't obscenity as defined by the Supreme Court. Neither are expletives, fleeting or otherwise.
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Bill Kirkpatrick, 29 Dec 2010 @ 6:48pm

Broadcasting and the First Amendment
The courts have long held that broadcasters give up certain First Amendment rights when they take an FCC license. That's what the George Carlin "Seven Dirty Words" case was all about: the Supreme Court ruled that the FCC can punish indecent (not merely) obscene speech on the public's airwaves. And that was merely one in a long line of cases that established that the FCC can punish "unwanted" speech as well as compel "wanted" speech. That's what broadcasting in the "public interest" is all about.

This state of affairs may be antiquated, unfair, or whatever, but it's not news and it's not a figment of the FCC's imagination. In other words, it's not, as you put it, that "the FCC is now trying to claim that broadcasters give up some of their First Amendment rights"; that "claim" is established and settled law. The dispute is over the boundaries of the FCC's control, what kinds of speech they can restrict, when they can levy fines, etc.
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vivaelamor (profile), 29 Dec 2010 @ 7:21pm

Re: Re: Re: Only seven years?
"Why? It's awesome when my kids sing sea shanties in the car later on. (Literally, they just were.)"

Sounds better than chanting 'are we there yet' (guilty).
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Anonymous Coward, 29 Dec 2010 @ 8:05pm

I'm not sure how showing your nipple during halftime at the Superbowl is considered a 1st Amendment right. Jackson knew very well that people expect a G rated performance, and should expect to be fined for not delivering.
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Rob, 29 Dec 2010 @ 9:31pm

Re: Broadcasting and the First Amendment
They let FOCKER go. Like a 5 year old can't figer that one out. So disbay the FCC.
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Anonymous Coward, 29 Dec 2010 @ 9:41pm

Re: Re:
What does or does not constitute obscenity is based on the "community standards" ruling (Miller v California). One of the issues is the community. There are very few rulings in the realm of obscenity that are set in concrete.

For purposes of a broadcast television, the definition of obscenity is much lower, as the community is all potential viewers including children. It could be argued under the Miller test that in fact those things are obscene.

oh, and you can keep your tl;dr to yourself. I take the time and care to read your comments, you should at least have the respect to do it for others as well. I wouldn't expect such rudeness from a teacher.
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Anonymous Coward, 30 Dec 2010 @ 12:48am

Re: Public airwaves
Not at all. Our voices are pressure waves. Radio waves are electromagnetic waves. Completely different.

</pedantic>

You should use some visual analogy instead: when we gesture, we are using the "public airwaves", since light is also an electromagnetic wave.
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mike allen (profile), 30 Dec 2010 @ 5:24am

Re: Re: Public airwaves
you are correct though not sure about the light thing just movement of a body appendage is not really modulating a electro magnetic wave as with radio or tv.
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imbrucy (profile), 30 Dec 2010 @ 6:26am

Re: Re: Re: Public airwaves
Techincally no one can see your body movement's without the light that is using the electromagnetic spectrum. It gets rather dark and hard to see when you can't use light.
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Rose M. Welch (profile), 30 Dec 2010 @ 7:09am

Re: Re: Re:
I think that you're misinterpreting the phrase 'community standards'. Community standards on obscenity are about what the community thinks is too obscene for anyone, not about different community standards for different age groups.

For instance, Oklahoma's community standards don't allow the sale of penetration porn to anyone. It's 'obscene'. That doesn't mean that we think that non-penetration porn is okay for children, it simply means that we don't believe that it's obscene, via Miller.

In short, community standards don't change based on who might be watching. If a boob is obscene on television in that area, then a boob is obscene anywhere in that area, and strip joints and the sale of Maxim should immediately cease.

Oh, and you can take time and care with whatever you like, and I'll do the same, including just picking out an interesting bit when I see it. You don't get to dictate what I should and shouldn't do, even concerning your comment. I wouldn't expect such rudeness from an Anonymous Coward.
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Jose_X, 30 Dec 2010 @ 7:47am

Re: It's not a new idea
It would make sense to me to have a channel or some amount of the bandwidth dedicated to unrestricted content. Some channels can be restricted (perhaps even locally). And the FCC can add rules to ensure everyone has some amount of access to any of these channels for communicating.

On the receiving end, there is no technical reason why you can't have the channels you don't like be excluded (this was true decades ago and is sure true today).
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nasch (profile), 30 Dec 2010 @ 8:03am

Re:
Sadly, the US constitution has been interpreted as a series of absolutes, often entirely bizarre. It is why in order to preserve your free speech rights, you have to support the KKK, Westboro's God Hates Fags, and Glenn Beck's right to exist - at least when it comes to free speech issues.

You're suggesting some people should have free speech, and others should not? Or that some ideas are so unpopular we should not allow them to be expressed?
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Tobbie Jackson, 30 Dec 2010 @ 9:15am

Janet
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Anonymous Coward, 30 Dec 2010 @ 11:02am

Re: Re: Re: Re:
Rose, I understand the implications of the Miller test very well.

Community is just that. The people who view broadcast television includes minors. Thus, minors are part of the community, and community standards essentially draws thing down to the lowest level of obscenity possible.

Community standards are exactly about who is watching, which is why a porn video that is obscene in certain areas (like Salt Lake City or parts of Florida), are not obscene in New York or Los Angeles. The definition of community is slippery.

If a boob is obscene on television in that area, then a boob is obscene anywhere in that area, and strip joints and the sale of Maxim should immediately cease.

You fail to understand the basic difference between broadcast and selective viewing. You can buy (and enjoy if you like) a porn movie in most places. You can even see frontal nudity on Skinimax if you like. However, you cannot broadcast that on the public airwaves, where it can be viewed by anyone including children. The difference is pretty simple and pretty clear.

Oh, and Maxim isn't obscene anywhere, as there is no nudity. There is titilation, but no more than you can see on the average public beach. You might want to use something like Playboy for an example, it would make much more sense. And yes, Playboy magazines are often forced behind blocking walls or entirely forbidden by ordinance in many communities, as they feel it is not up to their standards.

Ever wonder why in many places adult bookstores are in the middle of nowhere? Often they are lurking just outside of county or city lines, because that area does not permit adult material to be sold. Yet, adult material is protected free speech. Amazing how that works, right?
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justbite_me (profile), 30 Dec 2010 @ 4:41pm

FCC
Yes, Janet Jackson might have had a malfunction, but I doubt it. If anybody is going to give up free speech rights it should be the FCC for it's rectal speak.
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btr1701 (profile), 30 Dec 2010 @ 8:31pm

Re: Re: Red tape
> there are a limited number of licenses available in each area

There doesn't need to be. That technical limitation was overcome long ago. The only reason they're "limited" now is to give the government a reason to regulate.
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btr1701 (profile), 30 Dec 2010 @ 8:34pm

Re:
> The FCC faces a mandate to make the airwaves safe for all of
> the citizens, including those under the age of 18.

It shouldn't. There's no reason whatsoever that the FCC needs to be involved in managing content. Frequency allocation and other technical issues, sure. But the content should be off limits to government meddling.

The last thing we need is yet another group of bureaucrats deciding what's good for us.

Here's a thought-- why don't we decide for ourselves what's in our best interests?
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btr1701 (profile), 30 Dec 2010 @ 8:37pm

Re:
> Obscenity has always been considered non-protected speech,
> and the community standard as applied by the FCC is very low.

Nothing the FCC regulates in this context meets the legal standard for obscenity. Mere swearing or nudity is not obscene, per the Supreme Court. Even hard core porn isn't generally obscene. Obscenity is reserved for things like bestiality and child pornography.
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nasch (profile), 30 Dec 2010 @ 9:53pm

Re: Re: Re: Red tape
If everyone were allowed to broadcast on any frequency at any power level from any location, it would (possibly) become difficult to tune in any station, would it not?
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Rose M. Welch (profile), 31 Dec 2010 @ 10:29am

Re: Re: Re: Re: Re:
I subscribe to Maxim, and you see boobs at least once every three months.
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btr1701 (profile), 31 Dec 2010 @ 10:30am

Re: Re: Re: Re: Red tape
> If everyone were allowed to broadcast on any frequency at any
> power level from any location, it would (possibly) become difficult
> to tune in any station, would it not?

The point is that there are a practically infinite number of discreet broadcastable frequencies now, so the spectrum isn't limited in any real sense anymore.
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nasch (profile), 31 Dec 2010 @ 12:29pm

Re: Re: Re: Re: Re: Red tape
That may be true from a physics perspective, but how many are suitable for TV or radio broadcast? And is it more expensive to produce a device that can tune those infinite frequencies?
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Christopher (profile), 2 Jan 2011 @ 8:53am

Re: Re: It's not a new idea
We already have that.... it is called the V-chip and people simply not watch some things that are rated over TV-Y7 or letting their children watch that if they are so concerned.

Personally, I don't care if my children hear expletives. They are a NORMAL PART OF SOCIETY, and everyone over the age of 12 (and usually before that) uses them.
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