A Federal Appeals Court Invalidates the Federal Communications Commission’s Massive Fine for the “Nipplegate” Super Bowl Incident: The Decision and Its Implications
Julie Hilden has this commentary on Findlaw. She writes:
. . . The panel ruled in CBS’s favor. Unfortunately, however, its ruling is largely limited to the particular context of FCC policy as it stood at the time of the Super Bowl. If the same kind of incident were to happen this year, the fine might be upheld – especially if the performer at issue were an employee of the broadcaster, rather than an independent contractor like Janet Jackson . . .
Broadcasters are still burdened by the Supreme Court’s decision to cling to the antiquated notion that their licenses impose upon them a sacred duty to the public – a notion that developed when licenses were prized and scarce, and cable, let alone the Internet, was not an option. But individuals, fortunately, have no such duty – and still have the full complement of First Amendment rights that broadcasters are wrongly thought to have sacrificed. For this reason, using independent contractors may be a savvy way to maximize First Amendment rights, in this context and others.
Related:
Court Punts Super Bowl Indecency Ruling Back to FCC
3rd Circuit strikes fine against CBS for Janet Jackson Super Bowl nudity