Appeals Court Overrules FCC in Janet Jackson Case

By Ira Teinowitz

Janet Jackson’s wardrobe malfunction on the 2004 Super Bowl halftime show may have been exciting, but it didn’t violate TV indecency standards, a federal appeals court ruled today. The decision struck a blow to the Federal Communications Commission’s efforts to raise indecency standards on broadcast television.

A unanimous 3rd Circuit Court of Appeals in Philadelphia, in a broad 102-page ruling, today overturned the FCC’s fining of 20 CBS stations. The court said the FCC acted retroactively to distinguish between pictures and sound indecency and questioned the finding that CBS was liable. It said the fine disregarded the FCC’s long history of overlooking “fleeting” incidents.

The court also called the FCC’s reasoning “strained.”

“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,” said the court’s ruling.

“The commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. … Three decades of FCC action support this conclusion. Accordingly we find the FCC’s conclusion on this issue … ‘counter to the evidence before the agency.’”

Even stronger was the court’s reaction to the FCC’s holding CBS accountable for the incident. Two of the three judges said the FCC failed to adequately consider whether Ms. Jackson and fellow performer Justin Timberlake were CBS employees and suggested they were “independent contractors.”

“The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability,” the court said. “And it is unclear whether the FCC correctly applied a ‘willfulness’ standard to find CBS liable for failing to prevent the halftime show’s indecency.”

The court’s ruling came in reaction to the steps the FCC took after a portion of Ms. Jackson’s breast was displayed to 140 million viewers during the highest-rated program of 2004. The FCC determined the incident was of an “overall sexually provocative nature” and an indecency violation. The FCC had fined CBS a total of $550,000, or $27,500 for each CBS owned-and-operated station.

CBS had argued that the fine—the maximum per station at the time—was unjustified because the “malfunction” was nowhere in the script and the network had taken all reasonable precautions to see that what was scheduled to air met viewing standards.

CBS also said the decision reversed long-standing FCC standards for treating the airing of “fleeting, isolated or unintended” content. CBS also argued the FCC’s action was an attempt to impose content limits on broadcasters that contradicts the First Amendment.

While all three judges overturned the FCC's action, two expressed grave doubts about whether broadcast licensees can be fined by the FCC for actions taken by actors without their advance knowledge, a legal point that could kill off FCC action on any fleeting speech.

"The FCC's rule risks chilling constitutionally protected speech," the court said. "Any government regulation penalizing the content of speech or expression should require proof of scienter as an element of liability to survive First Amendment scrutiny," the court said.

Today’s decision is the second to go against the FCC, which under former Chairman Michael J. Powell began to ramp up enforcement against fleeting profane imagery and language on TV. Current Chairman Kevin J. Martin has continued the push.

A New York appellate court panel, on a 2-to-1 decision last year, overruled the FCC’s determination that Fox TV stations violated FCC indecency standards when they aired Nicole Richie and Cher’s fleeting vulgar expletives during Fox’s broadcast of the 2002 and 2003 Billboard Music Awards. The government’s appeal of that decision is to be heard by the Supreme Court next fall. The FCC, which didn’t fine Fox stations, wanted to use the case to signal its tightening of indecency standards.

The FCC subsequently has taken several indecency actions that included fines. One was to fine 45 ABC stations nearly $1.24 million for airing a 2003 episode of “NYPD Blue” showing a woman’s naked buttocks. ABC paid that fine and is appealing it in the 2nd Circuit Appellate court. The FCC also levied a fine of $91,000 against 13 Fox stations for airing a 2003 episode of “Married by America” featuring strippers attending a bachelor and bachelorette party, with pixelated body parts. Fox refused to pay the fine and the FCC has sued to collect.

The Janet Jackson incident was part of a halftime show put on by MTV that also included Mr. Timberlake. At the conclusion of the performers' song, Mr. Timberlake and Ms. Jackson planned a surprise. Mr. Timberlake would pull a strap on Ms. Jackson’s costume corset and reveal a red bustier underneath. Instead, Ms. Jackson’s breast was exposed. The incident infuriated Congress, which after several hearings with CBS and NFL officials raised the maximum fine the FCC could impose on broadcasters to $275,000 per station.