CBS appeal: FCC hurting free speech

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CBS told a federal court Monday that the government's new "zero tolerance" policy for indecent broadcasts is threatening to choke off free speech.

In its opening brief with the 3rd US Circuit Court of Appeals in Philadelphia, CBS contends that the commission's policy "is flatly inconsistent with the bedrock principle that First Amendment freedoms require breathing space to survive."

The case is one of two legal battles this month that will go a long way to deciding whether the government can slap broadcasters with a big fine and threaten their licenses to operate because of a slip of the tongue. The other case is in the New York circuit and involves Nicole Richie's use of the word "s***" during the 2003 Billboard Music Awards, which aired on Fox.

On September 22, 2004, the FCC said that CBS and Viacom, its parent company at the time, knew or should have known that Janet Jackson's breast would be exposed during a halftime show at the 2004 Super Bowl. CBS, MTV--which produced the show--Jackson, and fellow performer Justin Timberlake have all said that the moment was unplanned, though Jackson and her choreographer added a "wardrobe reveal" just before the show aired, according to commission and court documents. The FCC proposed fining all 20 of CBS's owned-and-operated stations the maximum $27,500 for the indecent broadcasts.

"The orders at issue in this case cannot be reconciled with either the prior three decades of FCC precedent or, more importantly, the decisions of federal courts articulating the First Amendment limitations" of the FCC's power over indecent speech, CBS said.

At issue is the FCC policy adopted in response to U2 frontman Bono's utterance of a version of the word "f***" during the 2003 Golden Globes broadcast.

In the Bono decision, the commission changed its definition of "fleeting" use, deciding that a certain word can be so vile that it runs afoul of the nation's indecency laws.

"All we're asking the court to do is to reinstate the old enforcement regime," one CBS executive said.

The commission contends that the fines, which totaled $550,000, were necessary because of the attention the show generated and the threat that an unrestrained Hollywood poses to American sensibilities.

"CBS continues to ignore the voices of millions of Americans, Congress, and the commission by arguing that Janet Jackson's halftime performance was not indecent," FCC spokesman Clyde Ensslin said. "CBS believes there should be no limits on what can be shown on television even during family viewing events like the Super Bowl; we continue to believe they are wrong."

CBS executives bristle at comments like Ensslin's. FCC chairman Kevin Martin has made similar comments.

Executives at the network accused the commission of speaking out of both sides of its mouth. Broadcasters say that's not true.

"If we're out to do what they say, then why do they use our own practices as an example?" one network lawyer asked.

They argue that the commission has commended broadcasters for their actions to voluntarily curb indecent speech.

"Our assessment of contemporary community standards for the broadcast medium is strongly bolstered by broadcasters' own practices," the FCC wrote in its 2003 order in the Billboard Awards case.

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." While obscene speech is not protected by the First Amendment, indecent speech is as the federal courts and the FCC have ruled that such speech can be aired from 10 p.m. to 6 a.m.

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