No TV for Jackson Case

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It’s unlikely any cable viewers will be offended by visual evidence in arguments in Janet Jackson’s breast-baring case being heard later this month.

The Third Circuit U.S. Court of Appeals in Philadelphia will not allow C-SPAN to televise the Sept. 11 oral arguments in CBS’ challenge of the FCC’s $550,000 indecency fine against the Janet Jackson/Justin Timberlake Super Bowl stunt.

The stunt, which lasted all of a second or so, led to time delays on live programming, editing of scripted fare and increased FCC fines.

The cable public affairs network televised the Dec. 20, 2006, oral argument in the challenge to the FCC’s profanity finding against Fox in the Second Circuit. C-SPAN had hoped to do the same for the even more high-profile Jackson trial.

“We took a shot in the dark and sent them a letter,” said Terry Murphy, VP of programming, for C-SPAN, “and they said no.”

While the Second Circuit Court of Appeals has opened its court to TV cameras, the Third has not and won’t start with the Jackson case, which is being argued on the afternoon of Sept. 11. C-SPAN will get access to audio from the arguments, however, and has been working with the court to try to get it as quickly as possible.

Unlike the Supreme Court, which releases the audio “right away,” the Third Circuit is not as quick, but Murphy says the court has told C-SPAN it will try to release it to the press by the end of the day. If so, the recording will air on C-SPAN-2 that night, as well as be streamed online and carried on C-SPAN Radio.

(Murphy says it will air on C-SPAN-2 because C-SPAN will likely be devoted to the report from Gen. David Petraeus on the war in Iraq, scheduled to be released the same day.)

While C-SPAN’s coverage of the profanity arguments contained numerous four-letter words which C-SPAN did not expurgate, the Jackson hearing is unlikely to need viewer warnings, though Murphy says it will add them if necessary.

CBS has already told the court in its brief that it is not pushing to get FCC out of the indecency enforcement business, but back to a policy of restraint that characterized the commission for decades, a policy it “abandoned” after it “failed to turn up even a shred of evidence” that CBS participated in or knew about the “Jackson/Timberlake” stunt.

The Second Circuit Court of Appeals, in rejecting the FCC’s explanation for its crackdown on cursing, signaled the FCC’s entire indecency enforcement regime could be suspect. CBS may not be looking to take down the indecency enforcement regime, but a win the Third Circuit might pave the way, ultimately for a Supreme Court challenge of the commission’s content enforcement powers.

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