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22 Comm. Law. 1 (2004-2005)

handle is hein.journals/comlaw22 and id is 1 raw text is: Communication C Puhl catlon of Ihe Forum ~on Communications Law American Bar Association Volume 22, Number 1, Spring 2004 C.' In this Issue Cover Story Tle Janet Jackson icident it the 20)4 Super Bowl and the 2003 Golden Globe Awards have led to ,:ongressional and FCC moves to prolwcl the viewing public from indecency on television and at the movies at the same time that the Supreme Court is overturning similar attempts to regulate the Interct and cable television. Chair's Column ......................... 2 Using the Kobe Bryant extravaganza as the basis for his analysis, Chair Tom Kelley suggests that closing court proceedings may actually diminish the rights of victims. Anomaly or Trend? ................... 3 A recent decision from the California Court of Appeal and dicta from the Seventh Circuit should not be construed as overturning the protection available to Internet Service Providers under § 230. Rwanda Media Convictions ...... 10 Although few would disagree with the end result, the authors contend that the International Criminal Tribunal for Rwanda established a dangerous precedent by excluding American case law on free speech. Reporter's Privilege Under Attack ........................... 14 In a rather sininge Iwisl, Dr. Aen IiHo lA'e htus questioned the scope of the rporter's privilege in the context of his sut agai-st the Energy and Justice Departments and the FBI in connection with his arrest on espionage charges. Let the Sunshine In .............. 20 Three law students attended the Ninth Annual Conference earlier this year and submitted their reports o n Florida's sunshine laws, media scandals, and the traditional hot topics. Courtalde ..................... 33 The Supreme Court issued opinions in two media-related cases during the past quarter. The Big Chill? Congress and the FCC Crack Down on Indecency KATHERINE A. FALLOW The infamous 2004 Super Bowl half-time incident-in which Justin Timberlake ripped open Janet Jackson's hustier and briefly exposed her right breast to the millions of viewers watch- ing the CBS broadcast-triggered an election-year political lienzy to clean up the airwaves. Calling the half-lime broadcast a classless, crass, deplorable stunt, Federal Communications Commission (FCC) Chainun Michael K. Powell vowed to begin a thorough and swift investigation.' Television and radio executives summoned before con- gressional panel.,s were grilled on what steps they would take to make the air- waves more suitable for family viewing. Congress hastened to act on legislation to toughen the FCC's enforcement of its broadcast indecency rules, which prohib- it the airing of indecent, obscene, or pro- fane material between 6 A.M. and 10 P.m. On March 11, 2004, by a vote of 391-22, the [louse passed its version of the Broadcast Indecency Act of 2004, which would increase the maxinimum slalutor) penalty for an indecency vio- lation from $27,500 to $500,000 and authorize the FCC to begin license rev- ocation proceedings against broadcast- ers with three or more indecency fines.' A similar bill pending before the Senate would authori7e the FCC to consider extending its indecency riles to program- ming judged to be gratuitously violent.' The proposed legislation would increase the scope of the FCC's enlorcetnent power by, among other things. authoriz- Katherine A. Illow (kjallowijenne. con) is a partner in the Washington, 1). C., office of Jenner & Block LLP. ing the Commission to fine individual speakers as well as broadcast licensees. Politicians and regulators have been necarly unanilmous in their clanor for stronger indecency enforcement. Politics aside, the notion that the federl govem- ment can regulate the cotntC of what is said on television and radio is widely accepted as a legal given. But such a con- tent-based speech regime is an anomaly in First Atendment jurisprudence. Although the FCC has been given rela- tively wide latitude to censor broadcast programming, the U_.S. Supreme Court hisr invalidated parallel government attempts to regulate indecency on cable television and the Intemet. 'l1be history of the FCC's indecency enforcement, notable for its vague standards and incon- sistent outcomes, underscores why the courts should be concerned about allow- ing the govemnenil to police program content on the airwaves. The FCC's historical record on indecency is troublesome enough. In a radical departure from its previous indecency framework, however, the FCC in March 2004 issued a ruling that demonstrates its willingness to restrict program content even further. Reversing an earlier decision of its Enforcement Bureau, the FCC held that NBC violat- ed the indecency rules when it broadcast live the 2003 Golden Globe Awards pro- gram, during which the singer Bono said fucking brilliant while accepting his awaid. Although it declined to fine NBC in light of the break from FCC precedent, the Commission held that Bono's statements constituted actionable indecemicy and profanity. (Continued on page 25)

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