In re-run of 2008 Janet Jackson decision, FCC extends its losing streak in court of appeals indecency cases

In a long-awaited if anticlimactic decision, a divided panel of the U.S. Court of Appeals for the Third Circuit has again sided with CBS in its seven-years-and-counting fight with the Commission over the 2004 Super Bowl® half-time show. For those of you with short memories, that was the show that featured Janet Jackson, Justin Timberlake and (for a spectacularly noteworthy appearance lasting 9/16 of a second), Ms. Jackson’s right breast, seen from a considerable distance.

While this most recent decision in CBS’s favor may be cheered by many (if not most) broadcasters, it is limited in scope. As a result, the impending Supreme Court show-down in the Fox Television case – already briefed, with an argument likely to be scheduled for early 2012 – remains the primary focus of attention among First Amendment aficionados.

But even so, the Janet Jackson case cannot be ignored. This was, after all, the situation that re-kindled the FCC’s interest in strict regulation of “indecency” on the airwaves.

To review the recent history of the case, we go back to 2008, when the Third Circuit first reversed the FCC’s decision to whack CBS with a $550,000 fine. Its decision was based on administrative, rather than constitutional, grounds. That is, the court concluded that the FCC’s imposition of a fine for a “fleeting” exposure of a breast was inconsistent with previously-established Commission policies. While the FCC can, of course, change its policies if it wishes, in doing so it must provide notice and an explanation of the change. According to the court, the Commission came up short on the whole notice/explanation thing. Because it found that the case could be resolved on non-constitutional grounds, the court did not take on CBS’s First Amendment arguments.

The FCC asked the Supreme Court to review the Third Circuit’s decision. However, in the meantime the Supremes considered a similar decision from the Second Circuit in the Fox case. In that case, the Supreme Court held that the FCC had adequately explained the apparent abandonment of its “fleeting expletive” policy. As a result, in May, 2009, the Supremes shipped the Fox case back to the Second Circuit for further consideration, and at the same time it shipped the CBS case back to the Third Circuit.

A year later (in July, 2010), the Second Circuit cranked out its decision on remand. There the Second Circuit held that the Commission’s indecency policy violates the First Amendment because it is unconstitutionally vague.   The FCC promptly asked the Supremes to look at that decision, and the Supremes agreed. As noted above, we’re expecting that that case will be argued in early 2012, and a decision should be out by July, 2012.

Meanwhile, the Third Circuit took its own sweet time . . . some 16 months longer than the Second Circuit. And the result of its deliberations, issued November 2, 2011, is nowhere near as dramatic as the constitutional gauntlet thrown down by the Second Circuit.

Instead, the Third Circuit has again concluded that the FCC’s decision in CBS reflected a change in policy that was not adequately announced or explained. Even though the Supreme Court’s 2009 opinion in Fox accorded the Commission considerably greater leeway to change policies than the Commission had previously been thought to enjoy, the Third Circuit remains convinced that the FCC’s CBS decision cannot survive even the more relaxed standard set out in Fox

And even the dissenting judge on the Third Circuit panel would reverse the CBS decision and remand it to the FCC. In his view, the Commission did not apply the proper standard of mens rea (a legal concept relating to the accused party’s level of improper intent or "guilty mind"), so he would send the case back to the Commission for further consideration.

Where the case goes from here isn’t clear. The Commission could ask the Third Circuit to reconsider its position. (That’s the approach the Commission tried, without success, in the Second Circuit.) The Commission could try to haul CBS back up to the Supremes. Or the Commission could throw in the towel.

Since the Commission hasn’t said die on this yet, it’s probably a pretty good bet that they will continue to fight the fight, at least in the short term. The goal would be to try to keep the case alive in some venue at least until the Supreme Court acts in the Fox case next year. If the Supremes decide that the FCC’s overall indecency policy runs afoul of the First Amendment, then presumably the FCC will drop any further appeal in the CBS case, as there will no longer be any indecency policy to enforce. But if the indecency policy somehow survives Fox’s constitutional challenge, the FCC might want to continue to slug it out with CBS on the non-constitutional issues.

So here we are, nearly eight years after Ms. Jackson’s 9/16 second exposure, with at least several months – and maybe a year or more – of additional litigation ahead. But for the foreseeable future, the broadcast interests (represented by Fox and CBS) appear to be in the driver’s seat. Let’s hope they stay there.