September/October 2008

Third Circuit Vacates, Remands FCC Penalty Against CBS for Super Bowl “Wardrobe Malfunction”

Holland & Knight Newsletter
Charles R. Naftalin | Leighton T. Brown
The FCC’s politically-charged campaign against indecency was dealt another serious blow on July 21, 2008, when the Third Circuit Court of Appeals overturned a $550,000 forfeiture against CBS for broadcasting a glimpse of singer Janet Jackson’s breast during the halftime show of the 2004 Super Bowl. The court vacated the Commission’s decision for several reasons, primarily on well-founded administrative law principles that the FCC arbitrarily and capriciously departed from its prior policy excepting “fleeting” broadcast material from the scope of actionable indecency and that the FCC had failed to adequately justify its reversal of this policy of some 30 years standing.
In addition, the court held that the FCC could not impose liability on CBS for the acts of Jackson and Justin Timberlake under theories of vicarious liability and respondeat superior, finding that they were independent contractors hired for the limited purpose of their performance, not CBS employees.
Of significant interest, the court was not satisfied with vacating the FCC forfeiture on those grounds alone. It also offered a lengthy First Amendment analysis that, although probably dicta, may become the basis for new restraints on the Commission’s legal authority to sanction radio and television broadcast content for alleged indecency. In a nutshell, the court held that, under the First Amendment, any valid finding of violation of broadcast indecency restrictions must include a finding that the offending broadcaster was properly charged with “scienter.” In other words, some aspect of knowledge or intent on the part of the broadcaster must be an element of the “crime” even if not specifically stated in the relevant statute or rule, as is the case for broadcast indecency.
In vacating on administrative law grounds, the court explained at length that, for approximately 30 years, the FCC had found fleeting words or images not to be a violation of the prohibition on indecency between 6 a.m. and 10 p.m. It was undisputed in the record that the “wardrobe malfunction” resulted in an exposure of Jackson’s breast for a mere nine-sixteenths of a second. The court determined that the Commission had not adequately justified, or for that matter given prior notice of, its departure from such precedent when it applied a policy resembling strict liability to the Super Bowl halftime incident. The court also made short shrift of a Commission argument that it had regulated indecent images differently (and without an exception for fleeting images) from indecent words by finding no such difference in FCC precedent.
The requirement of scienter as a necessary element of an indecency violation is the most interesting aspect of this 100-page decision. In effect, it states that the First Amendment forbids strict liability enforcement against broadcasters for alleged broadcast indecency. Instead, the Commission would be required to find a station to have had prior knowledge or intent to broadcast indecent programming or, at minimum, to have acted in a “reckless” fashion which resulted in a violation. In short, unintended or negligent broadcast of indecent words or images would not be actionable.
This remarkable holding, if it becomes the law of the land, would provide broadcasters with new protection against indecency enforcement actions. However, such a holding is far from effective yet, especially because the U.S. Supreme Court granted certiorari of the 2007 Second Circuit decision in the Fox Television case, which vacated FCC findings of indecency with respect to spoken words on administrative law grounds similar to those in the wardrobe malfunction case. The Supreme Court argument in the Fox case is expected this fall. The law of broadcast indecency, and the importance of the wardrobe malfunction case, will remain in play at least through the time that the Court acts.

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