Last night’s Super Bowl didn’t offer much in the way of excitement on the field, as the game was seemingly over by the end of the first half.  But, for the last decade, the half-time show itself may offer some anxiety to the stations carrying the game.  10 years ago, Janet Jackson had her infamous Super Bowl wardrobe malfunction incident which started a firestorm at the FCC for the next several years, as it ignited  many calls to more aggressively regulate indecency on the airwaves.  As a result of the incident, a number of fines were meted out for this program and to many others that aired soon thereafter.  But, in reality, what the incident did was to highlight just how difficult it is for the FCC to enforce any sort of indecency rules, as the issue raised at that time continue to be debated at the FCC right up to the present day.

As we have written before, the FCC policy that was applied to the Janet Jackson incident is one that is still in a state of limbo, as the FCC has issued a request for public comment on whether it should limit its enforcement to cases where there are egregious violations of the indecency policy rather than those that last a fraction of a second, as was the case in the Janet Jackson Super Bowl incident.  This need for reexamination arose after the Supreme Court decided that the FCC’s crackdown on any indecency, even “fleeting expletives”, was not adequately explained as it departed from prior FCC policy that understood that, on occasion, mistakes happen.  As long as the error causing something arguable indecent to be broadcast wasn’t repeated or planned, there would be no substantial penalty.  But even the common sense reform which essentially stepped back to the prior policy of recognizing that mistakes happen gave rise to many protests that the FCC should not back down on its tough indecency enforcement
Continue Reading Ten Years After Janet Jackson’s Super Bowl Clothing Malfunction, FCC Indecency Rules Remain in Limbo

The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC’s fine for the Janet Jackson "clothing malfunction" Super Bowl incident.  The Court once again rejected the FCC decision – essentially upholding a 2008 decision that had found the FCC’s indecency fine to be an arbitrary departure from prior precedent.  The

In light of the recent decision upholding the FCC’s right to sanction licensees for violations of the FCC’s Indecency rules for "fleeting expletives" in the Golden Globes and Billboard music awards, i.e. isolated profanity on the airwaves, the Supreme Court also remanded the Janet Jackson case to the Court of Appeals.  The one sentence remand (see page 2 of the list of orders) was so that the Court of Appeals could consider the impact of the fleeting expletives case on the Court of Appeals decision throwing out the FCC’s fine on CBS for the fleeting glimpse of Jackson’s breast during the Super Bowl half-time program.  The Third Circuit Court of Appeals that heard the Janet Jackson case had reached a decision very similar to the Second Circuit’s decision in the Golden Globes case – finding that the FCC had not justified its departure from a policy of not fining stations for fleeting instances of prohibited speech or pictures, where the words or pictures were isolated and their broadcast was not planned by the station.  Given that the Supreme Court has remanded the case to the Court of Appeals, the lower court will now need to consider the same constitutional issue that the Second Circuit will consider in the Golden Globes case – while the FCC may not have violated administrative procedures in justifying its actions, are the FCC’s indecency rules so vague and enforced in such a haphazard manner that they chill free speech or are otherwise unconstitutional?  Based on an analysis of the various concurring and dissenting opinions in the Golden Globes case, the Supreme Court might well decide the constitutionality issue against the FCC.  Could the final ruling in these cases have an impact far beyond the indecency question?

Two of the Davis Wright Tremaine attorneys involved in some of the indecency cases have written this memo, summarizing the Supreme Court decision in the Golden Globes case – pointing out how Justice Thomas seemed to imply that the constitutional basis of the FCC decision was suspect – even though he sided with the majority in finding that the FCC was justified in its administrative decision to find violations.  Justice Thomas seems ready to come down against the FCC on the constitutional issue were it to be squarely presented, questioning whether the Red Lion decision, justifying lesser First Amendment protections for broadcasters than other media outlets based on frequency scarcity, has continuing vitality.  Were this precept underlying the regulation of broadcast content to be undermined, the justification for much FCC content regulation could be in doubt.


Continue Reading Janet Jackson Case Sent Back to Court of Appeals – Could There Be An Even Greater Impact on Broadcast Regulation?

This week, legislation was introduced in the House of Representatives to make a single use of an expletive on a broadcast station subject to sanctions from the FCC.  This parallels legislation that was introduced in the Senate this summer, about which we wrote, here.  The point of this legislation is to overturn the decision of the US Court of Appeals for the Second Circuit which held that the FCC could not levy indecency fines on stations for airing a single isolated "fleeting expletive". As we wrote when the Senate Bill was introduced, the Second Circuit decision overturning the FCC’s fines was technically based, not on constitutional issues, but instead on the fact that the FCC had not rationally defended the distinctions that it made as to when to impose fines for the use of an expletive, and when to allow the use of the expletives without sanction (as in the airing of Saving Private Ryan).  The Court also faulted the Commission for not providing guidelines as to what was indecent and what was that were clear enough to alert a broadcaster as to what was permitted and what was not.  When a decision is based on an administrative failure to rationally justify its decision, Congress can pass a law providing that justification.  Here, that would give the FCC permission to fine a broadcaster for the use of a single expletive.  If the decision was constitutionally based, finding that the regulation of the use of fleeting expletives was unconstitutional, then the ability of Congress to pass a law permitting FCC action that the Court found was unconstitutional is severely limited.

However, while not basing the decision on constitutional grounds, the Second Circuit decision did go out of its way to question the constitutionality of the FCC’s indecency enforcement, but deciding that it did not need to decide the issue of constitutionality as it had already thrown out the FCC fines.  While the Second Circuit passed on that issue, another court may well reach the constitutional question in the near future.  On September 11, the Third Circuit, the same Court which invalidated many of the FCC’s 2003 liberalized multiple ownership rules, heard arguments on the FCC’s $550,000 fine imposed on the CBS owned-and-operated television stations for the Janet Jackson breast-baring Super Bowl incident.   CBS, represented by an attorney from our firm, argued that the FCC’s indecency rules are unconstitutional.  The Court seemed engaged in the issue, according to press reports, asking many questions.  As the briefs have been filed and the arguments made, the Court decision could come at any time.  Sometimes these decisions can be released quickly, though at other times the final decision can take many months to be written.  Broadcasters will have to wait for this further clarification.


Continue Reading Congress Tries to Overturn Second Circuit While Third Circuit Hears Janet Jackson Indecency Case, and “The War” Is Censored