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

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

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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