CBS appeal: FCC hurting free speech

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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The FCC should fine CBS for producing low quality shows. Entertainment Tonight, CSI xxx, NCIS, etc.
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The long nightmare of the Bush administration's FCC

is almost over. CBS should hang in there until new commissioners are appointed that DON'T have strong ties to the conservative faction that's currently running this country.....I have a strong feeling CBS won't be paying ANY fines when all this nonsense is finally over!
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**** the freakin FCC. They ruin TV, they should only get rid of crappy reality shows, but they try to control peoples lives, let the PARENTS decide what the kids watch, kay cha cha?
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The FCC should ban crappy reality tv shows, they are so inappropriate.
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the fcc continues to ignore the voices of millions of americans too, its just that those americans don't whinge so much as the 'millions' that cbs is accused of ignoring. it also ignores the first amendment. 'sakes, i'm welsh and i get it!

and as i said last time this story came about, if there's a large enough of an audience to justify the types of measures and restrictions that the fcc suggests, then the networks WILL cater to those audiences, it is their bread and butter after all, if there isn't, then there's no justification to impose one group's values on another group, its arrogant and ego-centric
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The eye
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Besideearth: have you heard of of parental controls"s
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Guilty as charged. They never did explain what was supposed to be intended when Timberlake ripped at Janet's top.
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hey besidesearth , how about you raise your bloody kids and not the tv . then the rest of us can watch programs that come closer to the realities of life , people swear . get the hell over it .
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Go FCC! You keep right on fighting for those of us who are tired of trying to explain to their kids what that nasty thing the heard and/or saw was!

It's hard enough raising kids without their tv programs going to hell too!
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I wouldn't be surprised if the FCC ended up banning itself. It all makes nonsense to me.
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The FuCC needs to be disbanded. It's just another arm of the Conservative Christian agenda. Let it go back to what it was made for: handing out licences for broadcasting, and stop trying to be everyone's mommy.



Millions of Americans? I watched the half time show and didn't even notice it until it was repeated non stop on TV for the next 3-4 months.
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