8 years later and it’s still hot news. This summer session, the Supreme Court, finally, officially, put the CBS Super Bowl “wardrobe malfunction” matter to rest. It let stand a 3rd Circuit Court of Appeals ruling that, in 2008, threw out the FCC’s $550,000 fine against CBS for its 2004 broadcast of a fleeting view of singer Janet Jackson’s breast.
That 2008 Appellate Ruling deemed the FCC’s fine for the network’s unplanned glimpse to be “arbitrary and capricious,” an unexplained departure from what the Appellate Court described as a 30-year FCC policy of exempting “fleeting” moments of indecency from the scope of the indecency broadcast ban [18 U.S.C. § 1464, prohibits the broadcasting of “any obscene, indecent, or profane language”].
But was this Supreme Court decision not to review the matter a triumph for broadcasters and an affirmation that “decency” standards have been relaxed?
On the contrary, with that denial, Justice Roberts, departing from the routine practice of denying certiorari without comment, made it clear that he thought the fine might well have been deserved and that the “fleeting” glimpse was sanctionable. He even went further to question whether indeed the “malfunction,” which occurred as Timberlake sang “gonna have you naked,” was truly as unintentional as CBS claimed.
More important to broadcasters and viewers in the future, Justice Roberts used the denial of cert to spell out just what he believes to be the FCC (in)decency policy and just how networks can be expected to be judged going forward. First, Roberts declared, the FCC’s “exception” to the indecency ban never covered visuals anyway, but only fleeting expletives; the rationale for this distinction, according to Roberts, is that “a picture is worth a thousand words” (especially to child viewers).
Secondly, Roberts said, the limited “fleeting” exception actually ended in 2004 [citing In re Young Broadcasting of San Francisco, Inc., 19 FCC Rcd. 1751 (2004); incidentally, that decision involved visual nudity]. Finally, Roberts explained, no reason remained to review the 3rd Circuit Janet Jackson decision because, although in Roberts’ view it might have been wrong to throw out the fine, the issues raised are mute. Instead, he noted, the FCC now has a clearly articulated policy about indecency. Citing FCC v. Fox Television Stations, 129 S.Ct. 1800 (2009), he stated that the FCC’s general and current policy is to conduct a content-specific examination of each allegedly indecent broadcast in order to determine whether it should be censored. No chance now of accusing the FCC of departing from a general rule if there isn’t one.
Will this case-by-case content-specific examination come to function like an “I know it when I see it” standard [Jacobellis v. Ohio, 378 U.S. 184 (1964)]? Perhaps, perhaps not if a reasoned analysis is what this examination truly requires. Yet it will be more difficult in the future for a network to argue that a fine is “arbitrary and capricious,” and, as the Supreme Court interprets it, brevity is no excuse. In any event, broadcasters beware, the momentary or unplanned peccadillo, whether a “fleeting expletive” or a flash of a pictorial profanity, will not be ignored.
Lizbeth Hasse
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