Remember the infamous "wardrobe malfunction" that happened during during the halftime show of the 2004 Super Bowl? On Monday, the D.C. Circuit Court of Appeals threw out a $550,000 indecency fine against CBS for airing the nine-sixteenths of a second bit of partial nudity. The Court found the FCC's action arbitrary and capricious because the agency had diverged from it's longstanding previous policy -- of punishing indecency only when the material in question was intended to shock the audience-- "without supplying notice of and a reasoned explanation for its policy departure." I'll link to the full opinion when the Court's web site has it up.
As the news story somewhat explains, the defeat is just the latest in a string of courtroom setbacks for the FCC's efforts to suppress supposedly indecent speech on the airwaves. The agency better hope that its fortunes improve before the Supreme Court decides a potentially major indecency case next term dealing with "fleeting profanities" (ie. when one or two isolated vulgarities are used in a broadcast.) I, for one, hope they don't.
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