Court Punts Super Bowl Indecency Ruling Back to FCC

The Third Circuit's decision throwing out the FCC's “wardrobe malfunction” fine against CBS is exasperating, because CBS really ought to pay a price for making Super Bowl halftime into a sleazy strip show.  Fortunately the decision is narrow in scope.

The U.S. Court of Appeals for the Third Circuit threw out $550,000 in aggregate fines against CBS-owned and operated affiliates, saying the company shouldn't be held liable for the exposure of singer Janet Jackson's breast by Justin Timberlake during the 2004 Super Bowl halftime show. The court held in CBS v. FCC that the FCC failed to give broadcasters adequate notice and explanation that the agency was about to begin enforcing rules governing broadcast indecency, specifically for “fleeting broadcast material” like flashing a breast. 

It's important to recognize that the court did not rule that the FCC may not fine broadcasters for programming that includes a fleeting moment of nudity, or that Jackson's so-called “wardrobe malfunction” wasn't indecent. The ruling is limited to the FCC's policy application and fine of CBS for the Super Bowl broadcast.

Chief Judge Anthony J. Scirica, writing for the three-judge panel, held:

In finding CBS liable for a forfeiture penalty, the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter [actual knowledge or recklessness, but not mere negligence on the part of CBS]. And the FCC's interpretation and application of 47 U.S.C. § 503(b)(1) are not sufficiently clear to permit review of the agency's determination of CBS's direct liability for a forfeiture penalty based on broadcast indecency.

The court acknowledged that the FCC “may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.” The court determined that the FCC had failed to do so. Scirica explained the implications of the FCC's history of indecency enforcement to the present case:

During a span of nearly three decades, the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to “shock treatment” for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency.

At the time the Halftime Show was broadcasted by CBS, the FCC's policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission's enforcement history reveals that its policy on fleeting material was never so limited. The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

Under the leadership of Kevin Martin, FCC chairman, the FCC began enforcing indecency regulations against “fleeting or isolated” words and images. When the FCC announced its intent to fine CBS for the Super Bowl broadcast, CBS CEO Les Moonves called the fine “patently ridiculous” and said that the company was “not going to stand for it,” after issuing an apology for the broadcast.

It's hard to imagine anything more patently ridiculous than a guy who pleads ignorance about what's patently offensive calling the fine patently ridiculous. And why apologize if he thinks the broadcast was lawful?

Maybe it was just an apology malfunction. Maybe CBS's claim to innocence and its failure to implement a video time delay on a show produced by the sex-sellers at MTV was patently insulting. Maybe the public shouldn't have to risk that CBS is going to exploit the invitation to come into the family home on a Sunday afternoon with a sleazy strip-show during the Super Bowl. Maybe we shouldn't be insulted further by Moonves calling it a “risk we have to take in order to enjoy live television.” Unless it's announced as a litter of Bunnies mud-wrestling at the Playboy mansion, who but a family of perverts thinks it's a reasonable risk to take in order to watch a live sporting event with the family in the family home?

CBS and other broadcasters have essentially declared war against the FCC's enforcement authority. The hundreds of thousands of Americans who have filed indecency complaints with the FCC, need to support Chairman Martin by letting him know that it supports vigorous and consistent enforcement.

So what's the FCC to do beyond an appeal to the Supreme Court? The FCC needs to accept the court's virtual invitation to “set forth a new policy and proceed[] with its indecency determination even though a retroactive monetary forfeiture [is] unavailable.” The FCC would thereby announce its rules of engagement by placing the broadcast industry on notice that it considers “fleeting images” as well as words to be actionable indecency.

Jan LaRue is a member of the Culture and Media Institute Board of Advisors.