On July 21, 2008, the 3rd Circuit U.S. Court of Appeals in Philadelphia overturned the Federal Communications Commission (FCC)’s imposition of a record-setting fine against CBS Corp. for its broadcast of the infamous 2004 Super Bowl Halftime Show “wardrobe malfunction.”
At the end of a performance of his song “Rock Your Body” with singer Janet Jackson, Justin Timberlake tore at a piece of Jackson’s bustier, exposing her right breast for nine sixteenths of one second, according to the court opinion. The incident sparked a scandal. Both performers apologized for what they called an accident, and CBS issued a public apology and claimed it had no prior knowledge of the stunt.
According to the ruling in CBS v. FCC, No. 06-3575 (3d Cir. 2008), the FCC asserted it received “an unprecedented number” of complaints following the broadcast, leading it to investigate the incident and eventually issue a notice of apparent liability, fining 20 CBS broadcast stations the maximum $27,000 each, for a total fine of $550,000, which, according to The New York Times on July 22, is the highest fine the FCC has ever levied against a television network.
In overturning the fine, the three-judge panel of the appeals court ruled that the FCC had “arbitrarily and capriciously departed from prior policy” that said “fleeting” broadcast of indecent material was not subject to punishment. The court also ruled that the FCC cannot impose liability against CBS for the acts of Timberlake or Jackson, who it said were “independent contractors,” because the FCC could not show that CBS knew in advance that the performers had planned the stunt.
The court vacated the FCC decision, and remanded the case to the district court, a disposition with which Judge Marjorie Rendell dissented. Rendell argued that although she agreed with the majority’s finding that the rule change was “arbitrary and capricious” and should be vacated, she said “nothing is to be gained” by remanding the case.
In accordance with the Administrative Procedure Act, 5 U.S.C. section 706, under which the FCC operates, administrative agencies are free to revise rules and policies at their discretion and without judicial interference, as long as the changes are not found to be “arbitrary and capricious.”
The majority opinion by Judge Anthony Scirica examined an extensive history of what he called “a consistent and entrenched policy of excluding fleeting broadcast material from the scope of actionable indecency,” dating back to the landmark case FCC v. Pacifica, 438 U.S. 726 (1978), a case which arose from a daytime radio broadcast of late comedian George Carlin’s “filthy words” monologue. According to the court opinion in CBS, in the span of nearly three decades since the Pacifica ruling, the FCC declined to find broadcast programming indecent unless it amounted to material so pervasive as to amount to “shock treatment” for the audience. Indecent material, which the FCC can define and regulate, is legally distinct from obscenity, which receives no First Amendment protection.
In March 2004 the FCC became more aggressive in its punishment of the broadcast of fleeting expletives when it ruled in In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 4975 (2004) that NBC could be held liable for its live broadcast of the 2003 Golden Globe Awards at which U2 singer Bono blurted out an expletive during an acceptance speech. The commission also said Fox television could be held liable for expletives uttered by presenters and award recipients during the 2002 and 2003 live broadcasts of the Billboard Music Awards. Because the instances all occurred before the FCC announced its new policy in the Golden Globes decision, however, it did not fine the networks.
In June 2007, the 2nd Circuit U.S. Court of Appeals struck down the Golden Globes decision, finding the FCC’s policy change on fleeting expletives “arbitrary and capricious.” (See “Second Circuit Strikes Down FCC’s ‘Fleeting Expletives’ Rule as ‘Arbitrary and Capricious’” in the Summer 2007 Silha Bulletin.) The U.S. Supreme Court has granted certiorari in that case. 2007 Silha Lecturer Attorney Robert Corn-Revere served as lead counsel for CBS in both the 2nd Circuit and 3rd Circuit cases. (See “Attorney, FCC Expert Robert Corn-Revere to Deliver 2007 Silha Lecture on Regulating Television Violence” in the Summer 2007 Issue of the Silha Bulletin.)
Although the Super Bowl broadcast occurred more than a month prior to the Golden Globes ruling and policy change, the FCC argued that NBC should have been aware of the policy change based on a sentence in a 2001 policy statement which said “[E]ven relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” The 3rd Circuit majority disagreed, saying, “when read in its original context rather than as an isolated statement, this sentence does not support the Commission’s assertion.”
The FCC also argued that since the finding of liability and fine in the Super Bowl case applied to video images, and not fleeting expletives, it did not represent a policy change. Because the previous rulings had only addressed spoken expletives, the FCC argued, there was in fact no policy in place that excepted fleeting images from liability. The court again disagreed, saying “[E]ven if we accept the FCC’s interpretation of Golden Globes and read it as only addressing fleeting expletives, the Commission’s view of the scope of its fleeting materials policy prior to Golden Globes is unsustainable … [because] the Commission – before Golden Globes – had not distinguished between categories of broadcast material such as images and words.” The court pointed out that the FCC has addressed complaints about nudity before, such as after a 2000 broadcast of the film “Schindler’s List,” but has not considered them factually or legally different from complaints about spoken expletives.
The court also rejected the FCC’s argument that CBS should be found liable for the actions of Timberlake and Jackson under a theory of respondeat superior, a doctrine under which an employer can be held liable for employees’ actions within the scope of employment, instead finding that the performers were independent contractors, not employees. The Court said “The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors” without providing proof that CBS knew that Timberlake would tear away Jackson’s bustier.
– Patrick File
Silha Fellow and Bulletin Editor