PHILADELPHIA - The Third Circuit U.S. Court of Appeals yesterday threw out a half-million dollar fine levied by the Federal Communications Commission (FCC) against CBS Corp. for having broadcast a split-second glimpse of Janet Jackson's breasts during the 2004 Super Bowl half-time show.
In a 2-1 ruling, where even dissenter Marjorie Rendell had only slight disagreements with the holding, Chief Judge Anthony J. Scirica declared that in fining the network, the FCC arbitrarily overturned its previously stated policy that "fleeting instances" of indecent speech were not actionable by the agency.
Although the Court described the breast-baring as a "deceitful and manipulative act," it would seem that the Court meant those adjectives to apply as much to the FCC's reaction to the stunt as to the performers for going off-script and creating the long and expensive legal battle.
But the Court did its due diligence in examining all aspects of the FCC's rationale for fining CBS and several of its affiliates $550,000 for allowing the brief exposure to go out over national airwaves, starting with the question of whether the fine was levied "arbitrarily and capriciously."
At the outset, the Court noted that the FCC's rationale for the fine was that the "broadcast was indecent because it depicted a sexual organ and violated 'contemporary community standards for the broadcast medium,' and that "[i]n making this determination, the FCC relied on a contextual analysis to find the broadcast of Jackson's exposed breast was: (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting. It further concluded that the brevity of the image was outweighed by the other two factors. The standard applied by the Commission is derived from its 2001 policy statement setting forth a two-part test for indecency: (1) 'the material must describe or depict sexual or excretory organs or activities,' and (2) it must be 'patently offensive as measured by contemporary community standards for the broadcast medium'." [Emphasis in original]
But unlike the FCC's finding, all three members of the appeals panel considered the "fleeting" issue to be a crucial factor.
"During a span of nearly three decades," Judge Scirica wrote, "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."
"The FCC contends its restrained policy applied only to fleeting utterances - specifically, fleeting expletives - and did not extend to fleeting images," the Court continued. "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."
It was this about-face on indecent imagery that took the FCC decision into previously unplowed territory, the Court found, and that made the fining of the network "arbitrary and capricious."
Indeed, although the FCC was given the power to impose forfeiture penalties for violations of broadcast decency since 1960, the first time it used that power was in 1975, for Pacifica Broadcasting's airing of George Carlin's "Seven Dirty Words" monologue, and then rarely after that. For a while, the agency held that only the words Carlin had used were actionable, but in 1987, the Commission expanded its standard to include, in what may have been a hat-tip to the Miller v. California obscenity standard, "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience."
However, even as late as 2001, when at the broadcast industry's request, the FCC clarified its rules and policies for indecency, "[o]ne of the factors noted as leading to prior determinations that a program was not actionably indecent was the 'fleeting or isolated' nature of potentially indecent material in the context of the overall broadcast."
But then musician Bono used the phrase "fucking brilliant" at the 2003 Golden Globe Awards, and although the FCC's Enforcement Bureau decided that the expletive was too fleeting to be actionable, the full Commission reversed its board's decision, terming it "no longer good law," and deciding that all future "isolated or fleeting broadcasts of the 'F-Word'" would be acted upon. The broadcast industry challenged that ruling, and on Feb. 21, 2006, the FCC issued an omnibus order to resolve multiple indecency complaints against broadcasters, wherein it found four of the complained-of programs to be "indecent and profane." Those included Bono's "fucking brilliant"; Nicole Richie's mention of "cowshit" on the following year's Golden Globe awards; various expletives used in different episodes of "NYPD Blue"; and another "dirty word" used by a cast member of the "Survivor" reality show during an interview on CBS's "The Early Show." Later, however, the FCC changed its mind and decided that those last two instances were not in fact indecent.
Once challenged on the "fleeting expletive" issue as applied to Jackson's breast-baring, the FCC retreated into full damage-control mode.
"[T]he FCC urges another reading of Golden Globes, perhaps less obvious yet still plausible," the Court wrote, "which interprets Golden Globes as addressing only the broadcast of fleeting expletives, not other fleeting material such as brief images of nudity. Further, the Commission contends its fleeting material policy, as initially adopted, was limited to fleeting words and did not extend to fleeting images."
After a lengthy examination, the Court determined that neither of those scenarios had actually been FCC policy.
"There were several alternative grounds given for the decision to reverse the fine and show that the FCC was acting arbitrarily and capriciously," noted First Amendment attorney Lawrence W. Walters, "one being that the fleeting display of images had never been the subject of fines in the past, even though the FCC is trying to say, 'Well, we meant the fleeting display of words was the subject of the policy before.' The Court gave short shrift to that argument. Words had been used interchangeably with images for a long time and the Court essentially said, 'This has been your policy, and you haven't come out and said why it's not,' so that was a sufficient basis for reversal. Also this strict liability of respondeat superior for any actions of any independent contractors; just because CBS engaged these folks to perform under a contract does not make them automatically liable for it."
Indeed, one rationale for levying the fine on CBS and its affiliates, rather than on Janet Jackson and Justin Timberlake themselves, was that CBS had "employed" the duo for the Super Bowl half-time show, and under the doctrine of respondeat superior, the employer could be held liable for torts (improper actions) committed by its employees. Judge Scirica's ruling contains a long discussion of why Jackson and Timberlake were "independent contractors," and their actions could not be imputed to CBS, concluding, "But the Commission has cited no authority for the proposition that a broadcaster may be vicariously liable for the speech or expression of its independent contractors."
The FCC's final rationale for CBS's liability was that CBS "'willfully' failed to take adequate measures to guard against a known risk that indecency might occur during the Halftime Show," and the Court spends fully half of its opinion dealing with that question, and with the issue of whether CBS had or should have had knowledge ("scienter") that the breast-baring would or might happen during its broadcast.
"According to the Commission, CBS deliberately ignored warnings that visual indecency might occur during the Halftime Show," Judge Scirica wrote. "The FCC contends the risk of indecency was obvious following public comments of Jackson's choreographer, who predicted that Jackson's performance would include 'some shocking moments,' and concerns raised by the NFL over the Halftime Show script. The FCC asserts that CBS failed to investigate these warnings or properly act to address the risk."
However, the Court could not come to a conclusion on the scienter question because it was unclear as to what specific section of the Federal Communications Code the FCC was using to levy its fine against CBS. In fact, at one point, the FCC argued that simply the fact that CBS was in the broadcasting business meant that anything indecent that occurred on one of its shows occurred "willfully."
Moreover, "Determining whether CBS acted with the requisite scienter would call for an examination of the scienter element inherent in the indecency provisions," the Court wrote. "Where a scienter element is read into statutory text, scienter would not necessarily equate to a requirement of actual knowledge or specific intent. See Carter v. United States, 530 U.S. 255, 269 (2000) (citing Staples v. United States, 511 U.S. 600 (1994)). 'The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.' Id. (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)). In some circumstances, recklessness is considered a sufficiently culpable mental state for the purposes of imposing liability for an act... Accordingly, we are unable to decide whether the Commission's determination that CBS acted 'willfully' was proper in light of the scienter requirement." [Some citations removed]
"You would think the equation of willfulness with simply being in the business of broadcasting to be a bit strange, especially since that's at odds with the Constitution and with the requirements in free speech cases," Walters noted. "But at least it gave the panel a chance to write a little about X-Citement Video and the need for scienter and some level of culpability in the free speech cases; that was useful."
"Generally speaking, the result is great," Walters continued. "We can celebrate the result that a broadcaster is not going to be fined for this fleeting suggestive material, but the case is not really a First Amendment case as compared to the Second Circuit decision [Fox Broadcasting v. FCC] and the FCC issues. This is more a decision regarding administrative procedures, statutory construction and the technicalities of the record on appeal in these cases. The panel was able to spend some time writing about the First Amendment requirement of scienter and culpability in any case involving expressive speech, and that's a good kernel that can be taken from this case and used in future cases. It reaffirmed the validity of the X-Citement Video holding which requires some level of scienter even if the statute or rule that you're dealing with does not actually contain such a requirement; it's got to be there. Scienter is required. And here, interestingly, they found that recklessness is the minimal standard for scienter in a First Amendment case. That's fairly new, so that's something that will be discussed and cited in future cases. This is not a criminal case, so I don't know how readily translatable that finding would be to a criminal case dealing with child pornography or something. Criminal scienter is something different; it's mens rea ['guilty mind']; it's a level of culpability that I would suggest is much greater than recklessness."
As a result of this decision, the ball in once again in the FCC's court to clarify and reaffirm its new policy on fleeting indecent words and images, but at least, if the Third Circuit ruling stands, the Commission won't be able to levy fines for any "fleeting" indecent material that has already been broadcast.
However, "the fleeting expletives thing is now their policy already since Golden Globes," Walters observed. "Since that decision, now everything fleeting is subject to fine, but this knowingly requirement or scienter requirement may save some of the broadcasters from liability under fleeting content because how can you have the standard of 'knowingly' if somebody does something you didn't know about?"
Walters expects broadcasters to attempt to get around the problem by imposing a five-second delay on video images in a similar manner to that which it already imposes on broadcast audio - but that doesn't solve the problem that the FCC, under chairman Kevin J. Martin, has taken a hard right turn into extreme conservative interpretations of indecent speech. The only thing that will begin to fix that is a new FCC head, and that won't happen until at least February of 2009.
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