Sex, Politics, and Admin Law
One of the most Tivo’d moments in Superbowl history came under scrutiny again today in the Third Circuit, where a panel found that “the Federal Communications Commission acted arbitrarily and capriciously” in issuing a $550,000 fine for the “nine-sixteenths of one second glimpse of a bare female breast” on the halftime show in 2004. I have not yet read the opinion, but this report recalls for me the doctrine of Alaska Hunters, rather than a straightforward application of admin law on unexplained departures from precedent:
The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.” “Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”
On one level, this failed fine for fleeting flaunting seems like an ideal topic for an admin law course, given that it arose out of a controversy everyone is familiar with. But on the other hand, whatever the topic gains in interest from its subject matter also threatens to turn it into a distraction…particularly in a wired classroom with instant access to a muted YouTube.
Perhaps more promising for admin-interest-enhancement is HBO’s program Recount, which dramatizes a rich array of classic admin law dilemmas. Separation of powers, federalism, statutory interpretation–all there, as Laura Dern chews up the scenery in a star turn as Katherine Harris. Have you ever seen a TV movie where the principals argue extensively over statutory interpretation? Or where the action depends on whether the chair of a canvassing board will accept an advisory opinion from the state elections commission as binding or merely persuasive authority, in light of contradictory advice from the state Attorney General? It’s all there, and I predict that anyone looking to introduce law students to admin may profit from having them watch key parts of Recount.