I have a really high tolerance for legal briefs and wonky ruminations on First Amendment issues and broadcast indecency policy -- I love reading the raw legal rationale for justifying or barring government-imposed curbs on free speech.
It was exciting to learn on Monday that the 3rd Circuit Court of Appeals had vacated the FCC's decision to fine CBS $550,000 for the Boob Flash of Destiny by Janet Jackson during her duet with Justin Timberlake during the 2004 Super Bowl halftime show. The fine was voided and the case remanded back to the FCC for a new review in light of the appeals court's lengthy guidelines provided in Monday's ruling, as Variety's William Triplett reports. (It's gonna be a big year for indecency policy geeks. Another case will be heard at the Supreme Court during its 2008-09 sesh.)
The Jackson-Timberlake incident turbo-charged what was already a mounting crusade in Washington, at the FCC and from self-appointed media watchdogs (the Parents Television Council by any other name) that has been politically motivated. It's been a red herring to push the buttons of certain voting blocs and a way to distract from the more substantial media policy questions facing the FCC (ownership limits, anyone?).
But even I found the 102-page decision on the Jackson fine impenetrable. (Read it here for yourself.) The case for the legal precedent and factors considered in the appellate review of the FCC's ruling on Nipplegate were rendered in mind-numbing detail in the opinion penned by Chief Judge Anthony Scirica
The basic argument boiled down to the FCC being out of line ("arbitrary and capricious" in the court's words) for taking a major departure from its past policy on indecency cases involving a "fleeting" instance of something untoward being said or shown on screen. The FCC was free to make a major change in its indecency policy, but it had to give broadcasters plenty of advance warning that it was doing so, the court reasoned.
In the past, the FCC cut broadcasters a lot of slack for incidents that were unplanned and unpredictable, like someone dropping an F-bomb during a live broadcast, or an accidental bit of nudity from, say, a "wardrobe malfunction."
According to the ruling, Jackson's bare breast was on screen during the Feb. 1, 2004 telecast for nine-sixteenths of a second (obviously some intern sat in front of the screen with a stopwatch)/ The $550,000 lump sum was derived by socking each of CBS' 200-plus affiliate stations with a $27,000 fine, the maximum allowed at the time the Super Bowl infraction occurred (the limit has since been raised to more than $300,000).
The FCC argued that while it had in the past been lenient on fleeting instances of nasty words spoken on TV, it never had an express policy for the broadcast of indecent images. The court begged to differ, saying that FCC's precedent offered ample evidence that the commission had treated fleeting words and images exactly the same, and mostly let the mishaps slide unless there was some egregious extenuating circumstance or obviously reckless behavior on the part of the broadcaster.
The FCC also sought to prove CBS' responsibility for the breast-baring incident by arguing that Jackson and Timberlake were employees of CBS, and thus the Eye was liable for the actions of its employees. The court didn't buy it, and the decision goes on at great lengths to prove that Jackson and Timberlake were not on staff and had a measure of control over the services they performed for CBS that day -- which is pretty much the definition of an independent contractor, the court ruled.
Finally, there was an interesting bit in the short dissenting opinion from Judge Marjorie Rendell. She quibbled with one element of the argument used to reach the decision, about defining how "willful" CBS was in approaching the broadcast. But she seemed even more fired up about the majority's decision to remand the case back to the FCC.
"There are no further proceedings necessary. Should the FCC wish to explain its change in policy, it can do so in the next case or issue a declaratory ruling," Rendell wrote. "It serves no purpose to do so in the context of this litigation. Nothing is to be gained, and CBS should not be forced to be a party to any such remand, with its attendant time and expense."