Set for a Showdown

Viacom is preparing to battle the FCC on Janet Jackson incident
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Viacom is gearing up for a Supreme Court battle over indecency. Bracing for a showdown, Viacom Co-President and CBS Chairman Les Moonves vowed to fight the FCC over what commission sources say will be a $550,000 fine against 20 CBS O&Os for Janet Jackson's Super Bowl peepshow.

"We're going to take it up to the courts if that happens," Moonves told a gathering of TV critics in Los Angeles last week. Any fine, he insisted, would be "patently ridiculous, and we're not going to stand for it."

The five FCC commissioners are mulling a penalty drafted by the agency's Media Bureau over Janet Jackson's halftime dance routine and her now infamous "wardrobe malfunction," which bared one of her breasts for a split second. A final decision could still be weeks away as the commissioners debate the fine print.

Once the FCC issues its "notice of apparent liability," Viacom will have 30 days to ask it to reconsider. If the commission stands by the decision and Viacom refuses to pay, the Justice Department would have to take the company to court in order to collect, forcing the federal government to defend the sanction on what many say is shaky legal ground.

The Janet Jackson case is the most infamous among a string of high-profile indecency cases—all involving Viacom and its affiliated broadcast divisions—that are likely to end up in court. The cases have set free-speech rights on a collision course with the government's statutory obligation to protect children from inappropriate programming.

Viacom has already vowed not to pay the $357,000 proposed levy for a sex stunt at Manhattan's St. Patrick's Cathedral orchestrated by two of its radio DJs. The company also is one of several big media companies demanding the FCC overturn its blanket declaration that the word fuck
would be declared indecent in nearly any context.

Many First Amendment lawyers predict that the issue will move to the Supreme Court, which has never definitively
ruled on the FCC's authority to fine stations or revoke licenses over indecency violations.

Now First Amendment advocates are applauding Viacom for digging in. They predict that the coming legal fracas will end up overturning most of the FCC's current restrictions on "indecent" programming.

"I applaud Les for taking this stand," says Kurt Wimmer, a First Amendment lawyer for Washington firm Covington & Burling. "It's a terrific statement."

Lawyers for CBS and Viacom won't discuss legal strategy to combat the Janet Jackson fine, preferring not to tip their hand or anger judges and commissioners before the case gets moving. But Wimmer and other First Amendment attorneys say the FCC will be vulnerable.

One obvious legal weak point, Wimmer says, will be the FCC's attempt to spell out exactly how Janet Jackson's boob shot meets the FCC's lawyerly definition of indecency. To be declared indecent, a broadcast must depict sexual or excretory organs or functions in a way that is "patently offensive."

"I think CBS will have a good defense here," Wimmer says. "One, it's just a breast—not a sexual organ—and, two, what about the incident was patently offensive?"

Any penalty for the Janet Jackson performance also must overcome the fact that the agency traditionally hasn't fined stations for brief or "fleeting" passages.

"The incident lasted less than a second," says John Crigler, lawyer for Garvey, Schubert & Barer, another Washington firm. In fact, the scene of Janet Jackson's baring her breast stayed in the public's collective memory only because the freeze frame was posted on the Internet, he points out.

"If the scene had only appeared in the broadcast," he suggests, "I don't know if anybody would be able to substantiate what happened."

He also predicts that judges will look dimly on the FCC's expected decision to fine CBS-owned stations but not affiliates controlled by other companies. "Limiting the penalty to O&Os and not fining affiliates sets up an argument that the FCC is being arbitrary and capricious," he says.

Crigler and other First Amendment specialists relish the coming fight over Janet Jackson in part because a strong ruling, no matter what direction it takes, will clear up an increasingly clouded picture of what can and can't be shown on TV today.

Says Wimmer: "I've never given more advice on indecency questions in my whole career than I have in the last six months."