CBS’ Eight-Year ‘Wardrobe Malfunction
Los Angeles Daily Journal
On April 17, the Federal Communications Commission asked the U.S. Supreme Court to review an appeals court decision overturning the $550,000 fine that the agency imposed on CBS after Janet Jackson's notorious "wardrobe malfunction"/flashing during the 2004 Super Bowl halftime show.
For the second time this year, in [FCC v. CBS Corp.], the Obama Administration is going to the Court to defend the FCC’s standards which are used to police the airwaves for racy images and dialogue.
Solicitor General Donald Verrilli told the High Court that the 3rd Circuit Court of Appeals erred and that the fine is warranted because although
the commission’s indecency rules at the time made an exception for “fleeting expletives,” that a brief flash of nudity does not fall under that exception.errilli wrote:
“The Commission explained … that its indecency rules and policies never included a ‘fleeting nudity’ exception to indecency liability,” Verrilli wrote. “The FCC’s explanation of its own regulatory approach is well supported by the agency’s prior guidance and decisions, as well as by the common sense distinction between words and images.”
An interesting twist is the fact thatthe FCC has asked the Court to delay review of CBS until after it decides another indecency case argued before nthe Court in January, [FCC v. Fox Television Stations (Fox II)].
[History of CBS Case]
Nine-sixteenths of a second has haunted CBS for eight years.The 2004 Super Bowl, which CBS broadcast live, included a now-infamous split-second shocker: During the halftime show featuring musical artists Justin Timberlake and Jackson, Timberlake “accidentally” tore off a piece of Jackson’s costume, briefly exposing her right breast to more than 90 million TV viewers. The so-called “wardrobe malfunction” prompted the FCC to fine CBS and its affiliates for depicting a sexual organ, which violates its indecency policy.
CBS challenged the fine, arguing that the FCC had traditionally excused fleeting indecent images and profanity. The 3rd Circuit agreed and struck down the FCC’s fine, noting that the agency had inexplicably departed from its prior policy of excluding fleeting material from the scope of actionable indecency.
The FCC appealed, and in May 2009, the Supreme Court vacated and remanded the 3rd Circuit’s decision in [CBS Corp. v. FCC].
The High Court reasoned that it should do so because of its ruling less than a week earlier in a similar case, [Fox I], in which it decided the FCC had not acted improperly when it toughened up its indecency policy and found another broadcaster, Fox, liable for airing fleeting expletives that celebrities Cher and Nicole Richie uttered during the live broadcasts of the Billboard Music Awards in 2002 and 2003, respectively.
But on Nov. 2, 2011, the 3rd Circuit again threw out the FCC’s fine against CBS.
“While we can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in [Fox I] … we again set forth our reasoning and conclusion that the FCC … improperly imposed a penalty on CBS for violating a previously unannounced policy,” Judge Marjorie Rendell wrote for the 2-1 majority.
The 3rd Circuit’s ruling quells CBS’ legal troubles associated with the halftime mishap. But media law experts say CBS’ ultimate outcome won’t truly be clear until the Supreme Court renders its second decision in [Fox II]. The decision, expected by June, should determine whether the FCC’s indecency standards are unconstitutionally vague.
[FCC v Fox Fox II]
The justices are already weighing another case, [FCC v. Fox Television Stations (Fox II)], related to the agency’s broadcast indecency rules. During oral arguments in January, Verrilli told the Court that the FCC’s decision that a slip of the tongue could get a broadcaster fined is constitutional and that nudity is covered by indecency rules.
The [Fox II] case is a combined case that arose from commission decisions involving a Fox broadcast of the 2002 Billboard Music Awards, in which Cher uttered an expletive, and another for a broadcast of the Billboard Music Awards in 2003 when Nicole Richie used the f-word and the s-word.
Another case came against ABC after a 2003 airing of an “NYPD Blue” rerun titled “Nude Awakening,” in which a woman’s bare buttocks and the side of one of her breasts is visible during one scene.
[Fox II] was argued before the Supreme Court in January. At the heart of this case is whether the government — here, the FCC — can infringe freedom of speech rights to protect children from nudity. This case deals with how best to protect children from profanity on television.
The broadcasters essentially want the Court to overturn a seminal 1978 decision [FCC v. Pacifica Foundation] that upheld the FCC's authority to regulate radio and television content during the hours when children are likely to be watching or listening, which includes primetime hours before 10 p.m. This case stemmed from the FCC's reprimand of a New York radio station for its mid-afternoon airing of comedian George Carlin’s monologue, “Seven Words You Can Never Say on Television,” containing a 12-minute string of expletives.
At the very least, the networks say the FCC's current policy is too hard to figure out and penalizes the use of particular words in some instances but not in others, for example, when ABC aired an unedited "Saving Private Ryan" to commemorate Veterans Day in 2001 and 2002. Of course, those broadcasts predated the FCC's decision to slap CBS-owned TV stations with a record fine over the national debut of Jackson's breast at the Super Bowl.
The Supreme Court already addressed the FCC’s indecency policy in 2009 in [Fox I]. Recall that a divided Court upheld the FCC’s ability to ban the one-time use of expletives by Cher at a Billboard Music Awards show in 2002. The 5-4 vote, written by Justice Antonin Scalia, endorsed a Bush Administration’s FCC policy against isolated outbursts of the “f-word” and “s-word.”
In an almost outspoken argument, the Supreme Court debated whether policing curse words and nudity on broadcast television makes sense in the cable era, with one justice suggesting the policy is fast becoming moot as broadcast TV heads the way of "vinyl records and 8-track tapes."
Verrilli said that if the Court were to overrule its 34-year-old decision, "the risk of a race to the bottom is real."
But Carter Phillips, representing the networks in connection with the fleeting expletives, said that little would change because broadcasters would remain sensitive to advertisers and viewers who don't want the airwaves filled with dirty words and nudity.
The Court is expected to rule on [Fox II] within the next two months. If it decides that the FCC's indecency regulations violate the First Amendment (a distinct possibility), the wrangling over the fine in [CBS] will be irrelevant.
These cases were sparked in part by an FCC decision to change its “fleeting expletive” exception following rock star Bono’s utterance of the f-word at the 2003 Golden Globe Awards. Because it involves both nudity and fleeting expletives, the case pending before the court has a bearing on the 2004 Super Bowl incident.
Verrilli is asking the Court to take up [FCC v. CBS] after it decides [FCC v. Fox FOX II.
The court's decision in [Fox II] may shed light on the proper resolution of this case. This petition therefore should be held for [Fox II] and then disposed of as appropriate in light of the court's decision.
Verrilli asked the high court to delay its decision to hear the Super Bowl-related case until after it hands down its opinion in [Fox II].
“The Court’s analysis of the fair notice claims in [Fox II] thus could bear directly on the correctness of the Third Circuit’s decision in this case,” Verrilli wrote. “For these reasons, this petition should be held pending the Court’s decision in [Fox II] and then disposed of as appropriate in light of that decision.”
Experts say the Supreme Court’s [Fox II] decision, which is expected by June, should determine whether the FCC’s indecency standards prohibiting broadcasters from airing fleeting expletives or images between 6 a.m. and 10 p.m. are unconstitutionally vague. The decision may also address the entirety of the FCC’s standards, and as a result may make the CBS case moot.