The Supreme Court has vacated the Third Circuit Court of Appeals ruling that the FCC's fine of CBS for the Janet Jackson wardrobe malfunction was arbitrary and capricious and sent it back to that court for further consideration "in light of the FCC v. Fox Television."
That was last week's decision that the Second Circuit court of appeals had been wrong to find that the FCC's defense of its pursuit of fleeting profanity on a Fox awards show was arbitrary and capricious.
Now the Supremes want the lower court to rethink its finding that the FCC's pursuit of fleeting nudity was arbitrary and capricious. CBS said Monday that it was confident the lower court would not change its mind.
In both cases, the courts could now consider the constitutional issues involved in the cases, which could ultimately land both cases in the Supreme Court, Fox for the second time.
The court's move was described as fairly standard by one veteran First Amendment attorney with experience with the court.
The FCC had sought Supreme Court review of the decision. The court essentially granted that review, which consisted of vacating the decision, which was what it needed to do before it could immediately send it back for reconsideration in light of its decision in Fox.
Both cases were decided narrowly on the grounds that the FCC had been arbitrary and capricious in reversing previous policy, in the Fox case in pursuing fleeting profanity, in the Jackson case fleeting nudity.
The Second Circuit will likely ask for new briefs on the case from the relevant parties in light of the Fox decision.
But that will take a while. Likely the next shoe to drop on the indecency front will be the FCC's indecency finding against NYPD Blue over a naked backside. That case is in the Second Circuit and was argued in February.
"We are confident that in reviewing the case the Third Circuit will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS. This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material."
In July 2008, the Third Circuit Court of Appeals threw out the fine against CBS stations for their airing of the Janet Jackson Super Bowl reveal in 2004.
That was the incident that helped prompt the Federal Communications Commission's crackdown on broadcast content, under pressure from Congress.
The Third Circuit in its July decision concluded that the FCC was arbitrary and capricious in changing a decades-old policy of not holding fleeting nudity indecent. The court conceded that the FCC has the authority to regulate indecent content, but it pointed to nearly three decades of "restraint" during which the agency "consistently explained that isolated and fleeting material did not fall within the scope of actionable indecency."
The FCC had argued that its policy applied only to fleeting expletives, not images, but the court wasn't buying it. "A review of the commission's enforcement history reveals that its policy on fleeting material was never so limited," the court found Monday. "The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy."
The court said the FCC is free to change its policy without "judicial second-guessing," but only with sufficient notice. "Because the FCC failed to satisfy this requirement," the court added, "we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS."
It will now have to rethink that call after the Supremes said in the Fox case that a government agency like the FCC does not have any higher threshold for defending/explaining a change in a policy than it does for setting a policy in the first place, nor does it have a higher bar for changes that implicate constitutional issues.
“Today the Supreme Court is siding not only with families, but with Congress and the overwhelming will of the American people in asking the Third Circuit to take another look at its absurd ruling, " said Partents Television Council President Tim Winter. "Just last week, the High Court affirmed the FCC’s ability to sanction a broadcaster for so-called ‘fleeting’ violations of the broadcast decency law. Today’s decision is absolutely consistent with last week’s announcement."
It was a massive indecency complaint effort by PTC members that helped prompt the Jackson decision.
James Steyer, who heads content rating/review company Common Sense Media, agrees the decision is "certainly no surprise," but adds that it can further set the stage for the courts to address the indecency issues and the First Amendment challenges from the industry.
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