The Law and Economics of Wardrobe Malfunction


ABSTRACT: This article examines the Federal Communication Commission’s indecency regulation for television and radio. In recent years, the FCC has not only pursued high profile enforcements such as Janet Jackson’s well-known Super Bowl half time show, but perhaps more important, has issued fines against broadcasters in record amounts totaling millions of dollars. Critics claim that these enforcements are politicized, arbitrary, and chilling of free speech.

This article proposes a new, market-based mechanism for indecency regulation that avoids the pitfalls of the FCC’s current approach. The proposal focuses on the viewer--advertiser relationship, in distinction to the FCC’s regulations, which concentrate solely on the broadcaster. Drawing on recent economic theory involving “two sided markets,” we argue that if the FCC required disclosure of all programming advertisers sponsor, consumers could then directly pressure advertisers, resulting in programming that better reflects “community standards” of indecency.


Administrative Law | Communications Law | Law and Economics

Date of this Version

August 2005