Janet Jackson's Boobs, Take 2

WASHINGTON, D.C. — In a terse paragraph contained in Monday's Supreme Court Orders List, the case of Federal Communications Commission (FCC) v. CBS Corp. has been remanded to the Third Circuit Court of Appeals for reconsideration.

"The petition for writ of certiorari is granted," the Order reads, meaning that the Court is "taking" the case – but there's that caveat: "The judgment is vacated and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of FCC v. Fox Television Stations, Inc.."

The Order refers to the Supreme Court's decision last week, authored by Justice Antonin Scalia, which sent the Fox case back to the Second Circuit Court of Appeals to consider the constitutional aspects of the controversy, since a majority of the high court justices felt that the FCC had not violated the Administrative Procedures Act with its Golden Globes Order banning even "fleeting expletives" as "indecent speech."

"The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children," Scalia wrote for the majority in Fox. "In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to 'substitute [our] judgment for that of the agency,' and we find the Commission's orders neither arbitrary nor capricious."

The CBS case, of course, involved a half-million dollar fine levied by the FCC for CBS and its local affiliates having broadcast the nine-sixteenths-second exposure of Janet Jackson's breasts during the 2004 Super Bowl half-time show.

However, Judge Anthony J. Scirica, writing for the Third Circuit panel's majority, likewise found the application of the Golden Globes Order – so named for singer Bono's exclamation at the 2002 Golden Globes Award show that his being honored there was "fucking brilliant" – was flawed because "[t]hroughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency."

A more thorough analysis of FCC v. CBS Corp. can be found here. However, since the Third Circuit also declined to deal with the constitutional  aspects of indecent speech, as it is mandated to avoid when it is possible to decide a case on non-constitutional issues, that same three-judge panel will now reconsider the case in light of the free speech aspect of the First Amendment.

At press time, the Third Circuit had not scheduled a date for reargument on the constitutional issues, a briefing schedule for the reconsideration, nor an indication as to when the court would revisit the issue without further argument.