In a unanimous decision a split panel of the United States Court of Appeal for the Third Circuit has overturned the fine levied against CBS for the incident at the 2004 Super Bowl in which Janet Jackson's right breast and nipple were exposed for "nine sixteenth of one second" before the cameras were able to turn away. In the decision, written by Judge Anthony J. Scirica, with a concurring opinion delivered by Justice Marjorie Rendell, the court found that the FCC acted "arbitrarily and capriciously" in its decision. (The complete decision, which also deals with the matter of whether CBS would have been liable for fines even if the FCC had not acted in an arbitrary and capricious manner, can be found here – this is a .pdf file) While acknowledging the FCC's authority to regulate indecent content, Judge Scirica pointed out that it had long practiced restrain in doing so: "During a span of nearly three decades, the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency." The decision of the court was that "Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS." (italics mine.)While the FCC claimed that "its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission's enforcement history reveals that its policy on fleeting material was never so limited. The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy." But of course this is also a policy which the current FCC has chosen change in an arbitrary manner in their decision against FOX in the case of the Billboard Music Awards, a decision also overturned on appeal and currently being considered by the US Supreme Court.
For those, like the Parents Television Council which cite the Pacifica decision (when a station owned by the Pacifica Foundation aired a recording of George Carlin's "Filthy Words" monologue), the court pointed out that the FCC itself issued a clarification order covering live broadcasts: "Expressly acknowledging the forfeiture order's potential negative impact on broadcast coverage of live events where 'there is no opportunity for journalistic editing,' the FCC stated its intention to exclude such circumstances from the scope of actionable indecency." This is a point which the concurring decision on Pacifica, by Justices Powell and Blackmun emphasised: "Justices Powell and Blackmun concurred in the judgment, writing separately in part to reiterate the narrowness of the decision and to note the Court's holding did not 'speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here.'" Judge Scirica's decision points to two cases after Pacifica (in 1983 and 1987) where the FCC ruled on cases where language was used that did not meet the "verbal shock treatment" standard. And while in 1987 the Commission did change its standard to "rely on the broader terms of its generic indecency standard, which defined indecent material as 'language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.'" (again, italics mine). But this did not overturn the basic standard as stated in the clarification to Pacifica or the 1983 and 1987 cases (and in the Powell concurrence) related to isolated or fleeting material. In other words a policy had been established. This was reaffirmed in 2001 when the broadcast industry sought clarification of the FCC's policies on broadcast indecency, which the FCC provided in a policy statement. "The policy statement included multiple examples of FCC rulings as 'case comparisons' highlighting the factors that had proved significant in prior indecency determinations. One of the factors noted as leading to prior determinations that a program was not actionably indecent was the "fleeting or isolated" nature of potentially indecent material in the context of the overall broadcast." Indeed this was an even clearer assertion of the standard.
This policy changed just three years later when the Commission overturned a finding of their own enforcement bureau concerning Bono's statement at the 2003 Golden Globes in which he said "this is really, really fucking brilliant." While in its May 2004 decision the FCC "acknowledged the existence of its restrained enforcement policy for isolated or fleeting utterances, it overruled all of its prior cases holding such instances not actionable. ('While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.'). But the Commission made it clear that licensees could not be held liable for broadcasting fleeting or isolated indecent material prior to its Golden Globes decision." That would be three months after the Janet Jackson incident. And that's an important point in the current decision, even setting aside the Second Circuit Courts decision overturning the decision on the Golden Globes case: "Accordingly, we find the Commission's unsubstantiated contentions in this regard contradict the lengthy history of the Commission's restrained enforcement policy. While "an agency's interpretation of its own precedent is entitled to deference," Cassel v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998), deference is inappropriate where the agency's proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC's policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to Golden Globes, this was the policy in effect when the incident with Jackson and Timberlake occurred."
The court then went on to address the FCC's contention that the fleeting materials policy was limited to words rather than images, meaning that the Golden Globes decision would be inapplicable in this case. This relates to whether there was an adequate an explanation for changing its policy. The FCC holds that it had no prior policy on fleeting images and therefore did not have to provide an explanation, reasoned or not for their new policy. CBS contended that the FCC's indecency regime treated images and words alike "so the exception for fleeting material applied with equal force to words and images." The Third Circuit Court found that "The Commission's conclusion on the nature and scope of its indecency regime – including its fleeting material policy – is at odds with the history of its actions in regulating indecent broadcasts. In the nearly three decades between the Supreme Court's ruling in Pacifica and CBS's broadcast of the Halftime Show, the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. Instead, the FCC consistently applied identical standards and engaged in identical analyses when reviewing complaints of potential indecency whether the complaints were based on words or images." (again, italics mine.) They mention a 2000 decision rejecting a claim that nudity in the movie Schindler's List was indecent in which they said "the FCC noted 'nudity itself is not per se indecent' and applied the identical indecency test the agency used to review potentially indecent language. The Commission did not treat the nudity complaint differently – factually or legally – from a complaint for indecency based on a spoken utterance.... The Commission even referred in a footnote to its policy towards fleeting material, never suggesting the policy would be inapplicable because the offending broadcast content was an image rather than a word." The Court noted that the FCC policy was also upheld in a decision on the revocation of the license for WGBH Boston for broadcasting indecent material: "Among several 14 broadcasts at issue in WGBH were: (1) 'numerous episodes of Monty Python's Flying Circus, which allegedly consistently relie[d] primarily on scatology, immodesty, vulgarity, nudity, profanity and sacrilege for humor'; (2) 'a program entitled Rock Follies . . . which [the petitioner] describe[d] as vulgar and as containing profanity' including 'obscenities such as shit, bullshit, etc., and action indicating some sexually-oriented content in the program'; and (3) 'other programs which allegedly contained nudity and/or sexually-oriented material.'" In their argument, CBS provided several complaints accompanied by a corresponding reply letter rejecting the complaint. These incidents included "the early-evening broadcast of a female adult dancer at a strip club and alleges the broadcast contained visible scenes of the woman nude from the waist down revealing exposed buttocks and 'complete genital nudity' for approximately five to seven seconds," and "a Sunday-morning television broadcast of the movie Devices and Desires, which included "scenes of a topless woman in bed with her lover, with her breast very clearly exposed, several scenes of a topless woman running on the beach, and several scenes of a nude female corpse, with the breasts clearly exposed." While the FCC contended that these form letters were irrelevant since they "do not even explain the grounds for the staff's conclusions that the broadcasts were not indecent, much less rely on the 'fleeting' nature of any alleged nudity as a reason for rejecting the complaints," the court held that "the rejection letters illustrate that the FCC used the identical form letters and indecency analyses to address complaints of indecent nudity that it had long used to address complaints of indecent language." Accordingly the Court found that "In sum, the balance of the evidence weighs heavily against the FCC's contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission's entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission's exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion. Accordingly, we find the FCC's conclusion on this issue, even as an interpretation of its own policies and precedent, "counter to the evidence before the agency" and "so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
One interesting point that the decision recorded was that it was nearly impossible to determine the actual number of complaints receive from "unorganized, individual viewers." According to the FCC, they received "an unprecedented number of complaints." However, in their brief CBS pointed out that "Of the 'over 542,000 complaints concerning the broadcast' the FCC claims to have received, over 85 percent are form complaints generated by single-interest groups. Approximately twenty percent of the complaints are duplicates, with some individual complaints appearing in the record up to 37 times." In other words the sort of thing that the Parents Television Council does all the time when they complain about "indecency.
Needless to say, the Parents Television Council is incensed by this decision. In a press release PTC president Tim Winter claimed that "Once again, a three-judge panel has hijacked the will of the American people – not to mention the intent of the Congress acting on behalf of the public interest – when it comes to indecent content on the public airwaves. While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court's opinion goes beyond judicial activism; it borders on judicial stupidity. If a striptease during the Super Bowl in front of 90 million people – including millions of children – doesn't fit the parameters of broadcast indecency, then what does? If the Court doesn't think that the event wasn't shocking enough, even though it was the single largest news story for weeks when the nation was at war, then what is shocking enough? By saying that the FCC still retains its power to regulate the public airwaves, this court shows that its ruling was merely to second-guess the FCC's decision to fine CBS. The Third Circuit Court is wrong, and we urge the FCC to appeal this case to the U.S. Supreme Court. We urge the public to speak up on this matter by contacting their congressional representatives and the White House too."
I can't help but wonder at the degree of legal "expertise" that Tim Winter brings to the table on this one. The question here isn't one of a "three-judge panel" hijacking the will of the American people, since it seems to me to be unclear what the "will of the American people" is in this case. The number of independent complaints on this case not generated by single interest groups is significant but would hardly seem to be overwhelming. The questions turns then to the matter of judicial activism. It seems that what the PTC is arguing for is a variant on that – regulatory commission activism if you will. The Court decision seems to be a well reasoned statement of both the facts in the case and the precedents up to the point of FCC clarification related to the Bono statement. There are ample examples provided that prove not only the existence of the FCC's prior policy related to "the 'fleeting or isolated' nature of potentially indecent material in the context of the overall broadcast," but also that policy had not been inclusive of fleeting examples of speech but also to nudity. And indeed far from what is implied by the PTC description of "a striptease during the Super Bowl," this was far more fleeting than previous examples, the duration being precisely "nine sixteenth of one second." The event which according to the PTC was shocking because "it was the single largest news story for weeks when the nation was at war" simply does not equate with the FCC's position at the time – as defined in Powell and Blackmun's concurrence to the original Pacifica Decision – that indecency must represent "verbal shock treatment," or in this case "visual shock treatment." Certainly this is the case given the duration or the nature of previous incidents which the FCC has chosen not to fine in the past. And remember this is even before factoring in the Second Circuit Court's 2007 overturning the FCC's decision on Bono. And of course one must ask to what degree it was groups like the PTC and its fellow travellers such as the American Family Association, and the politicians which they lobbied, that made this the "single largest news story for weeks" (and let's set aside this business of the nation being at war – by the time of the 2004 Super Bowl "major combat operations in Iraq" had been concluded for nine months and President Bush had declared "Mission Accomplished")? No, it seems clear that this doesn't represent "judicial activism" but rather a well thought out evaluation of precedent and policy and the degree to which the FCC itself overstepped its own boundaries.
In the end one is left to wonder how Justice John Paul Stevens would feel about the matter. It was his majority position in Pacifica that is constantly cited by the PTC as the justification for censoring even something so fleeting as this. In Pacifica Stevens wrote that "It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution." In other words, even at the time Justice Stevens recognised that there were circumstances in which the fleeting use of expletives could be broadcast. What he objected to in Pacifica was what has since come to be called the "verbal shock treatment" effect of something like the Carlin routine, or someone like Howard Stern. But even more interesting is the evolution of his opinion on Freedom of Speech which might have an effect on rulings in the current cases such as the appeal of the Second Circuit's decision on Bono or this case. In his dissent to the 2002 decision in ACLU v Ashcroft related to the Children On-line Protection Act (COPA), Stevens wrote, "As a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing." If nothing else is true, it seems obvious to me that what Stevens intended in Pacifica is
neither what the PTC thinks he meant or what the current FCC has used it to justify. In any event, this issue will bear watching.
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