Tuesday, Jul 22, 2008    Text size: 

In reaching its decision, the Court found that the FCC had acted arbitrarily and capriciously by changing its policy on "fleeting material" without proper notice to broadcasters. The Court also rejected the FCC's conclusion that CBS was legally responsible for the actions of the two performers.

The 3rd Circuit's decision was applauded by Vermont author and attorney Frederick Lane, whose recent book "The Decency Wars: The Campaign to Cleanse American Culture," chronicled the 2004 Super Bowl half-time show and the legal proceedings that followed.

"The FCC's tortured attempt to revise its policies to punish CBS was only marginally motivated by concern for public decency," Lane said. "Instead, the Commission's unusually aggressive investigation and punishment of CBS was motivated by a desire by Michael Powell to deflect attention from his controversial deregulatory policies and the Bush White House's interest in satisfying its Religious Right base in an election year."

According to Lane, the 3rd Circuit's criticism of the FCC for its efforts to turn its indecent speech regulation into strict liability for broadcasters, a policy the Court said would have a significant chilling effect on the First Amendment, is particularly noteworthy.

"If liability for obscenity may lie only where scienter [knowledge of criminality] is proven, then liability for higher-value speech must depend on a showing of some quantum of scienter at least as significant," the Court wrote. "The government's authority to restrict constitutionally protected speech or expression can be no greater than its authority to restrict unprotected speech or expression."

"For much of the past decade," Lane said, "social and religious conservatives have been trying to use the FCC to impose a narrow moral agenda on broadcasters; some even want to extend the FCC's jurisdiction to cable and the Internet. The Court's opinion underscores the danger of allowing a small group of government regulators to impose their subjective views regarding speech on the entire country."