DOJ: To File Or Not To File...

WASHINGTON - There's something to be said for not wanting to look stupid before the U.S. Supreme Court twice on the same issue, so the Solicitor General's office has requested an extra month to decide whether it wants to take its loss in the Third Circuit regarding Janet Jackson's split-second tit exposure to the nine "men in black."

The deadline for Solicitor General Gregory Garre to petition the high court to hear the case of CBS Corporation, et al. vs. Federal Communications Commission, which arose out of Jackson's performance at the 2004 Superbowl halftime show, was to have been Oct. 19, but Garre has served notice on the Media Access Project, one of the parties to the case, that he needs until Nov. 18 for  "consultation with the FCC and to assess the legal and practical impact of the ... ruling" before making his final decision.

"But that extension would also allow the government to first gauge the court's reaction to its arguments Nov. 4 in the government's appeal of the Fox profanity decision," notes John Eggerton of Broadcasting & Cable Online, a broadcasting industry webzine.

Using language very similar to the Third Circuit decision delivered on July 21, the Second Circuit ruled in the case of Fox Broadcasting , et al. v. FCC that "fleeting expletives" broadcast during live award shows should not have been the subject of FCC fines unless and until it clarified its rules regarding such utterances. Rather than do so, however, the FCC petitioned the Supreme Court to hear its appeal of the Second Circuit ruling.

It seems likely that if the Supremes give the Solicitor General what he interprets as favorable treatment during the argument in the Fox case, then Garre is more likely to petition for certiorari in the CBS case - though as Eggerton notes, "handicapping oral argument is an inexact science at best."