The Chief Justice of the Supreme Court has essentially
warned broadcasters that the FCC has served fair notice that fleeting images
and expletives are subject to indecency enforcement.
The Supreme Court generally denies appeals without further
comment, but Chief Justice John Roberts took the opportunity of the court's
denial of the appeal of the Third Circuit Court smackdown of the FCC's CBS
Super Bowl halftime indecency fine to say he was not sure the Third Circuit had
gotten it right and to warn that its arbitrary and capricious call on the FCC's
Janet Jackson fine would not protect the next "wardrobe malfunction."
Roberts said he concurred in the decision to deny the appeal
because even if the Third Circuit were wrong that the FCC had arbitrarily
strayed without notice from its fleeting indecency policy, that issue was moot
going forward because the FCC had since given notice that it had abandoned its
fleeting expletive exception and so had made clear that brevity was no defense,
"be it word or image...any 'wardrobe malfunctions' will not be protected
on the ground relied on by the court below," said Roberts.
As to whether the Third Circuit got it right, Roberts said
he was "not so sure." He drew a distinction between fleeting
profanity and images.
"Until 2004, the FCC made a limited exception to this
general policy for fleeting expletives," he said. "But the agency never stated
that the exception applied to fleeting images as well, and there was good
reason to believe that it did not. As every schoolchild knows, a picture is
worth a thousand words, and CBS broadcast this particular picture to millions
of impressionable children."