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3rd Circuit Finds In Favor of Janet Jackson's Tit—UPDATED

Ruling may affect arguments in the upcoming Supreme Court case of Fox Broadcasting v. FCC

3rd Circuit Finds In Favor of Janet Jackson's Tit—UPDATED

PHILADELPHIA—In a surprise ruling released today, the Third Circuit U.S. Court of Appeals has ruled once again that the Federal Communications Commission (FCC) had overstepped its authority and in fact violated its own policies in trying to fine CBS, Inc. for the 9/16 of a second baring of Janet Jackson's breast during the 2004 Super Bowl Halftime Show.

Although it had been rumored that the Third Circuit might delay its decision in the CBS case until the Supreme Court had ruled on FCC v. Fox Broadcasting—a case it had remanded to the Second Circuit in 2009, and in which the Second Circuit reaffirmed its prior ruling, this time on First Amendment rather than procedural grounds, which involved the FCC targeting two instances of "indecent speech" at the 2002 and 2003 Billboard Music Awards shows: One in which award-winning singer/actress Cher responded to critics with a curt, "Fuck 'em," and another where Nicole Richie, describing her role in the sitcom "The Simple Life," complained, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"—such was not the case.

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Employing the same logic that the Second Circuit used in Fox, the Third Circuit came to a similar conclusion, citing the FCC's so-called Golden Globes decision, which arose out of yet another Billboard Music Awards show where U2 singer Bono, upon receiving his award, announced that it was "really, really fucking brilliant."

"The expletive utterances by Cher and Nicole Richie that were considered in Fox took place, respectively, during the 2002 and 2003 Billboard Music Awards telecasts, before the full Commission‘s March 2004 Golden Globes decision," wrote the three-judge panel's majority. "Accordingly, and applying the same rationale as in Golden Globes, the FCC declined to impose a fine. As the Fox Court observed and affirmed, the decision not to impose a fine in that case signaled the FCC‘s understanding that imposing sanctions for conduct that occurred before the FCC‘s policy change was announced would raise due process concerns."

"The same principle applies here," the majority continued. "The relevant Halftime Show broadcast occurred in February 2004, preceding the FCC‘s ruling in Golden Globes. But despite its earlier consistent policy exempting all fleeting material—words and images—from its indecency rules, the FCC assessed a fine against CBS. Fox confirms our earlier observation that because the Commission did not announce any change in its fleeting- material policy until March 2004, and because the offensive conduct in this case (like the offending conduct in Golden Globes and Fox) preceded that date, the FCC‘s assessment of a forfeiture and imposition of a penalty against CBS constitutes arbitrary, and therefore unlawful, punishment." [Citations removed here and below; emphasis in original]

A large portion of the majority's ruling, authored by Judges Marjorie Rendell and Julio Fuentes (both Clinton appointees), is taken up with its disagreements with the lone dissenter, Judge Anthony Scirica (a Reagan appointee), over the import of some phrases in the Supreme Court's Fox decision, with Scirica suggesting that the FCC's Golden Globes decision as well as its precursor, FCC v. Pacifica Foundation—the so-called "seven dirty words" case—covered images as well as words, and the majority pointing out that nowhere is that stated explicitly.

"The FCC has not persuaded us that the fleeting-material exception was ever limited to words or expletives, and it cannot do so when in Young Broadcasting [of San Francisco, Inc., an internal FCC decision] it treated a fleeting image just as it would have treated fleeting words," the majority stated. "Considering all of these facts, we do not see any basis to conclude that Fox alters our previous analysis of the fleeting-material exception. At bottom, the Commission attempts to convert a passing reference in Fox‘s background section into a holding that undermines what the opinion otherwise makes clear: an agency may not apply a policy to penalize conduct that occurred before the policy was announced."

Perhaps more interestingly, after making its ruling, the panel majority continued discussion of the issue in the section it terms "Part B: Opinion Regarding the Merits." In so doing, the majority took a second look at its prior decision, which had been unanimous with Judge Scirica as its author, and rejected the part of that opinion which dealt with the scienter ['guilty knowledge"] required for a violation.

In restating its prior opinion minus the majority's rejected material, one interesting fact emerged that, with Republican presidential candidates vying for recognition as "most morally conservative," should make any adult industry member particularly wary not to support such a candidate: Of the "over 542,000 complaints" the FCC claimed to have received regarding the breast incident, 85 percent were "form complaints generated by single- interest groups" like Parents Television Council, which mounted a nationwide internet campaign against CBS. "Approximately twenty percent of the complaints are duplicates," the court continued, "with some individual complaints appearing in the record up to 37 times."

The following sections of the panel's then-unanimous decision are worth quoting:

"The FCC possesses authority to regulate indecent broadcast content, but it had long practiced restraint in exercising this authority. During a span of nearly three decades, 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.

"At the time the Halftime Show was broadcasted by CBS, the FCC‘s policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances—specifically, fleeting expletives—and did not extend to fleeting images. 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.

"Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS."

While it's unclear without a side-by-side comparison of the two decisions exactly which verbiage is currently being retained by the panel majority, it's worth remembering that this whole situation—the Supreme Court cases involving both CBS and Fox Broadcasting—came about because two of its chairmen—Michael K. Powell and Kevin J. Martin, both Republicans appointed by George W. Bush—decided that in the 21st century, the American public was still too delicate to hear words spoken during broadcasts that they likely heard in conversation on a daily basis, and to see images of body parts that, in most cases, they'd see by looking downwards while taking a shower, or by seeing their partners undressing for bed.

Adult industry members and supporters, therefore, should be concerned not only that Republicans never again be given the chance to nominate Supreme Court justices, but also not be given the chance to appoint religio-conservative bureaucrats whose objectives will be to gut the agencies they'll be appointed to head, like the Department of Education, the National Labor Relations Board, the Securities and Exchange Commission, the Environmental Protection Administration... and the Federal Communications Commission.






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Mark Kernes

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