FCC Fine to CBS on Janet Jackson’s 2004 ‘Wardrobe Stunt’ Again Tossed by 3rd Circuit
Janet Jackson’s “wardrobe stunt” at the 2004 Super Bowl still isn’t indecent, the 3rd U.S. Circuit Court of Appeals in Philadelphia again ruled on CBS v. FCC. It was a 2-1 ruling touching on matters other than the First Amendment. Free speech still is expected to be front and center during oral argument at the Supreme Court later this year or early next on indecency cases involving two other broadcast networks, and Wednesday’s ruling isn’t expected to change that or affect the U.S.’s case against Disney’s ABC and News Corp’s Fox, industry lawyers said. The high court had sent back to the 3rd Circuit its earlier reversal of the $550,000 fine to CBS for showing for 9/16 of a second Jackson’s bare right breast (CD July 22/08 p1) because of the justices’ ruling on administrative law grounds on the Fox case.
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Fox I was repeatedly cited in the 3rd Circuit’s new decision, written by Judge Marjorie Rendell on behalf of herself and Judge Julio Fuentes. “We can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in Fox -- since both involve the FCC’s policy regarding fleeting material” in which indecent content is shown only briefly, Rendell wrote (http://xrl.us/bmhoxr). “We conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.” For the two judges, the issue goes to whether the FCC adequately put broadcasters on notice of a policy change that they could be fined for fleeting indecency. “The FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy,” Rendell wrote. The FCC had no comment.
Judge Anthony Scirica dissented, though not on constitutional grounds, saying the agency put CBS “adequately on notice of the policy the FCC applied in this case.” He wrote that he can’t join Fuentes and Rendell in finding that the forfeiture orders for the breast-baring were “arbitrary and capricious” under the Administrative Procedure Act. The commission didn’t “contend that CBS knew that” Justin Timberlake would expose Jackson’s breast during their half-time show, “or intended that display to occur,” and the jurist said he doesn’t believe “liability for indecent broadcasts requires a showing of actual knowledge, actual awareness, or intent on the part of the broadcaster.” But since the agency didn’t show the company committed “civil recklessness,” he'd have sent the case back to the FCC: “I believe recklessness is the constitutional minimum standard for scienter when imposing forfeiture penalties."
An industry lawyer said the new ruling “confirms” what broadcasters argued to the 3rd Circuit: Fox I didn’t affect CBS. The decision seems unlikely to change the industry’s or government’s strategy in ABC/Fox, predicted the attorney, who'd be “surprised if it came up” at oral argument. The Supreme Court will consider before its fall term ends in January whether the First and Fifth Amendments bar the FCC from fining ABC for showing an actor’s buttocks on a 2003 episode of NYPD Blue and Fox for airing cursewords from performers Cher and Nicole Richie in 2002 and 2003 on the Billboard Music Award program. It was clear to some who watched the reargument of CBS in early 2010 that the 3rd Circuit would again rule against the commission (CD Feb 24/10 p1), but they said today that delay in releasing the decision puzzled them.
The FCC’s 2004 order censuring Fox, because U2 frontman Bono swore on a Golden Globe award show the year before, “abandoned” a policy of restraint in not finding indecent isolated cursing, Rendell wrote. “The expletive utterances by Cher and Nicole Richie that were considered in Fox took place, respectively, during the 2002 and 2003 Billboard Music Awards telecasts, before the full Commission’s March 2004 Golden Globes decision,” she wrote: “As the Fox Court observed and affirmed, the decision not to impose a fine in that case signaled the FCC’s understanding that imposing sanctions for conduct that occurred before the FCC’s policy change was announced would raise due process concerns” and the “same principle applies here” in CBS. “The relevant Halftime Show broadcast occurred in February 2004, preceding the FCC’s ruling in Golden Globes."
"But despite its earlier consistent policy exempting all fleeting material -- words and images -- from its indecency rules,” the agency fined CBS, Rendell wrote. “Fox confirms our earlier observation that because the Commission did not announce any change in its fleeting-material policy until March 2004, and because the offensive conduct in this case (like the offending conduct in Golden Globes and Fox) preceded that date, the FCC’s assessment of a forfeiture and imposition of a penalty against CBS constitutes arbitrary, and therefore unlawful, punishment.” Scirica and the FCC “point to one small portion of the background section in the Supreme Court’s lengthy Fox opinion as support for the position that the FCC’s fleeting-material policy never applied to images but was always restricted to words,” Rendell wrote: “But we discern no such meaning in the relevant passage” saying the commission explained that “each literal description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive."
CBS, “gratified that once again the court has ruled in our favor,” hopes “this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,” the company said. The Parents TV Council, whose members flooded the agency with complaints about the Jackson broadcast, felt otherwise. “Today’s ruling reaches the level of judicial stupidity and is a sucker-punch to families everywhere,” President Tim Winter said: “The Third Circuit has chosen to ignore the law, the facts, Supreme Court precedent” and “the intent of the Congress.” The ruling is “hardly a surprise,” he told us. “We hope the Supreme Court will bring today’s CBS decision into the courtroom with the ABC and Fox cases."
There’s “less here than meets the eye,” said Andrew Schwartzman, senior vice president of Media Access Project, which represented CBS friend-of-the-court Center for Creative Voices in Media in the case. “This decision is a narrow application of the Fox decision about the FCC’s statutory authority. Since the court found it unnecessary to reach the constitutional questions, it is unlikely to have noticeable impact on the Fox/ABC cases in the Supreme Court,” he told us: The 3rd Circuit during oral argument, which he observed, “was very concerned about the language in the Fox opinion, although the majority finally decided it wouldn’t change the result.”