The battle over the hefty fines imposed for Janet Jackson's infamous "wardrobe malfunction" at the 2004 Super Bowl is ready to come back to court.
It has been nearly eight months since the U.S. Supreme Court ordered the 3rd U.S. Circuit Court of Appeals to take a second look at the case and to consider reinstating the $550,000 in fines that the Federal Communications Commission imposed on CBS over Jackson's breast-baring performance. Without comment, the justices said the 3rd Circuit should reconsider its decision in FCC v. CBS Corp. in light of the high court's decision in FCC v. Fox Television Stations -- a case that focused on the related issue of vulgar language.
Since then, the 3rd Circuit has ordered both sides to file supplemental briefs. The case also attracted a flurry of amicus briefs, but the judges have not yet decided whether to hold a second oral argument. Predictably, one set of briefs assures the 3rd Circuit that it got the issue right the first time around, while the FCC and a collection of conservative, family values groups argue that the high court's decision in the Fox case compels the 3rd Circuit to reverse itself and reinstate the fines.
The briefs also reveal that comparing the two cases is no simple matter for two reasons. First, the FCC's rules about indecent images and indecent speech are markedly different. And the agency was clear about its intent to get stricter with foul language, while there is strong disagreement in the CBS case about whether the rules got stricter.
The Fox case involved several instances in which celebrities had uttered the "F-word" and other vulgarities during live broadcasts, and the FCC responded by imposing no fines, but announcing that it would no longer tolerate indecent language even when it is fleeting.
The justices, by a 5-4 vote, ruled that the FCC acted reasonably in banning even the single-time utterance of "fleeting expletives" over broadcast airwaves. But the high court stopped short of deciding whether the ban violates the First Amendment, instead sending the case back to the 2nd Circuit for further proceedings, including an examination of the constitutional issue.
Court watchers considered the Janet Jackson case a companion case that raised similar legal issues relating to the FCC's power to regulate indecency of a visual nature. The 3rd Circuit, in overturning the fines, held that the FCC had strayed from a long-held approach of applying identical standards to words and images when reviewing complaints of indecency. Because the Jackson breast-baring incident lasted only nine-sixteenths of one second, 3rd Circuit Chief Judge Anthony J. Scirica said it should have been regarded as "fleeting" and that the FCC, by imposing the maximum fines on CBS, had 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."
In its supplemental brief to the 3rd Circuit, CBS's lawyers, led by Robert Corn-Revere of Davis Wright Tremaine in Washington, D.C., argue that the Fox and CBS cases simply can't be compared.
In the Fox case, the justices were focused on the power of an agency to change its policies and concluded that the FCC had complied with the requirement that it offer an explanation for the change.
By contrast, CBS's lawyers argue, the FCC never acknowledged in the 3rd Circuit case that it had adopted a change in policy for policing indecent images.
"In this case," Corn-Revere argues, "the Commission never owned up to the fact that its decision to fine CBS was based on a change from longstanding policy. Indeed, it argued strenuously to the contrary, that it had always had a policy of treating fleeting images of certain parts of the human body to be indecent."
That argument fell flat in the 3rd Circuit, he argues, where the judges concluded that the FCC was refusing to acknowledge a policy change and that such an unacknowledged change clearly violates the Administrative Procedures Act.
The FCC, in its supplemental brief to the 3rd Circuit, argues that the Supreme Court's decision in Fox "confirms that there is not, and has never been, an exemption to federal broadcast indecency proscriptions for ‘fleeting images.'" FCC Associate General Counsel Jacob M. Lewis argues in the brief that the "decision to impose a forfeiture on CBS for televising images of Janet Jackson's breast during the 2004 Super Bowl halftime show thus did not depart from prior agency policy, and there was no change in course that the Commission was obligated to explain."
In an amicus brief, a coalition of conservative groups -- Morality in Media Inc., Focus on the Family and the Family Research Council -- argue that over the past 50 years, the courts have "ignored the societal interest in decency," and that the FCC has been lax in its enforcement.
As a result, attorney Steven H. Aden argues in the brief, the courts and the FCC have "enabled the purveyors of indecency to overrun the rights of decent Americans, who are now bombarded by degrading, indecent, coarse, and sexually charged content on an almost round-the-clock basis."
Broadcasters, he argues, "have been pushing the envelope by gradually inserting more and more indecent content on an unsuspecting public."
But in an amicus brief filed by Fox Television that supports CBS, attorney Carter G. Phillips of Sidley Austin argues that the First Amendment requires a finding of scienter -- or knowing conduct -- on the part of the broadcaster before imposing a fine.
"The FCC's new approach is unquestionably chilling constitutionally protected speech," Phillips argues.
Even with time-delay equipment, the Fox brief says, "there is no assurance that allegedly indecent material will not air, thereby resulting in potentially massive fines."
And since the FCC now treats broadcasts of the same program by separate television affiliates as separate violations, the brief says, the aggregate fines for a single, fleeting instance of indecency could exceed $65 million.
Phillips argues that "significant broadcasts have been cancelled or delayed out of fear of enormous indecency fines."
When CBS announced that it would broadcast a Peabody award-winning documentary on the fifth anniversary of the Sept. 11 attacks without editing potentially offensive words, Phillips noted, "numerous affiliates serving roughly 10 percent of U.S. households decided they would either not air the program at all ... despite having previously aired the same documentary twice."