The Third Circuit Court of Appeals is clearly still pondering broadcasters' challenge to the FCC's fine of CBS stations over the Janet Jackson/Justin Timberlake Super Bowl half-time reveal, and may have hit on an argument that it could pin the decision to without reaching the constitutionality of the FCC's overall fleeting profanity and nudity policy.
In what First Amendment attorneys described as an unusual request to make after oral arguments (which were Feb. 23), the court has asked for new briefs from both sides, with a May 18 deadline.
The three-judge panel of the court, the same three who heard the original case, want to hear more about what level of intent and knowledge of the unscripted indecent material CBS would have to have to trigger the fine, and whether it applied the same standard to Young Broadcasting (Young drew a fine after one of the Puppets in the Puppetry of the Penis troupe slipped out during a morning show).
Among the related topics the court wants extra input on are whether CBS can be held liable if it did not intend to broadcast "the specific material found indecent?"
The call for briefs suggests the judges may be looking intently at the "intent" argument as a way to resolve the case without reaching the constitutional question of the FCC's overall indecency authority, said one veteran First Amendment attorney who has defended broadcasters cited for indecency.
"The court appears fascinated with that particular argument. We're speculating, but it is fair to speculate, that it is fascinated because it is a nonconstitutional basis for resolving the case that it has to consider, he says. "Most of what the court is asking here is: 'Hey, what do you mean by "willful,' And they are posing some questions about exactly what standard the FCC is applying," said the attorney.
The court is hearing the case for a second time on instructions from the Supreme Court, after the Supremes threw out the Second Circuit's decision that the FCC's crackdown on profanity in Fox awards shows was arbitrary and capricious. The Third Circuit in its first hearing of the Jackson case had held that that decision, too, was arbitrary and capricious.
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