In a decision which comes as no real surprise, the Supreme Court has agreed to hear the FCC’s appeal of the 2008 decision of the U.S. Court of Appeals for the Third Circuit, which reversed the forfeiture meted out to CBS for the Janet Jackson Super Bowl incident. But having agreed to hear the appeal, the Supremes lost no time in vacating the lower court’s decision and shipping the case back down to the Third Circuit for further consideration in light of the recent decision in FCC v. Fox Television Stations, Inc.
As we have previously reported here and here, the Fox decision changes certain non-constitutional considerations relating to the FCC’s indecency policy. Since the Third Circuit’s decision was based on just such non-constitutional considerations, the Supreme Court’s remand is standard operating procedure.
The remand does set up the possibility that both Fox and CBS could return to the Supremes simultaneously. Both the Second Circuit (i.e., the Fox court) and the Third Circuit (i.e., the CBS/Janet Jackson court) will be getting their respective cases back at essentially the same time (i.e., now). Since the remaining issues are relatively straightforward, both courts might be able to deal with the remand proceedings in reasonably short order. If both courts were to issue decisions in those remands at approximately the same time, consolidated review by the Supreme Court would not be out of the question.
While both Fox and CBS/Janet Jackson involve FCC findings of “indecency”, the two cases are distinct in a number of ways. Perhaps most obviously, Fox involves mere words, while CBS/Janet Jackson involves the fleeting image of Ms. Jackson’s right breast. Consolidated consideration of both cases would provide the Supremes the opportunity to consider both the verbal and visual components of indecency regulation.
Check back to www.commlawblog.com for further developments.