Breaking News

“Wardrobe malfunction” — Act II

With the Supreme Court already poised to rule on the government’s campaign against fleeting television images of nudity, and of dirty words, the Third Circuit Court on Wednesday struck down a $550,000 fee imposed on CBS TV stations for the exposure — for 9/16th of one second — of a female performer’s breast during a half-time show at a 2004 pro football game, witnessed (if they were watching at the time) by an audience of nearly 90 million viewers.  The 2-1 decision by the Philadelphia-based court in the now-famous “wardrobe malfunction” case was based on a theory that the Federal Communications Commission had never justified its decision to punish such a broadcast; the ruling did not involve a constitutional issue.

The decision, the result of nearly two years of study and multiple rounds of briefing, emerged in a 69-page majority opinion and a 53-page dissenting opinion.  Both can be found here.  The case had been returned to the Third Circuit by the Supreme Court in May 2009, overturning a unanimous Circuit panel decision that had been issued in the summer of 2008.  The case might well return to the Supreme Court, at some point, but it may lose its significance if the Supreme Court in the meantime strikes down the Federal Communications Commission policy.  If the FCC ban is invalid, the agency could not punish anyone for a violation.

For years, up until 2004, the FCC had followed a policy of barring television and radio stations from airing dirty words only if they were repeated; it did not apply that policy to “fleeting” utterances of such “expletives.”  As the most recent challenges to the policy have been working their way through the courts, including the Supreme Court, there has been a dispute about whether the FCC had the same policy toward “fleeting images” — such as scenes of nudity.   However, there is no question that, as the policy now exists, it does ban both isolated, even very brief, images as well as “fleeting expletives” such as the F-word and the S-word (as courts sometimes cautiously refer to those well-known words) during the hours when children might be watching or listening (6 a.m. to 10 p.m.).

When the Supreme Court reviews the pending case of FCC v. Fox Television Stations (docket 10-1293), it will be ruling on constitutional challenges, under the First and Fifth Amendments, to the current ban on “fleeting” images as well as words.   The case, already drawing an array of amici filings, has not yet been set for oral argument, but is likely to be scheduled for some time in the two-week sitting that begins January 9.  (When the Court granted review on June 26, Justice Sonia Sotomayor took no part.  It thus appears that the case is going to be decided by an eight-member Court.)

The Fox TV case is back before the Justices for a second time.  In a 5-4 ruling in April 2009, the Court decided that the FCC, in changing its policy in 2004 to ban fleeting expletives and nudity, had acted within its powers under its governing federal statute.  However, the Court did not then address broadcasters’ constitutional challenges to the policy; that is what is before the Court this Term.

Awaiting the Court when it ruled in the Fox TV case two years ago was a separate appeal by the FCC (FCC v. CBS Corp., et al., docket 08-653), challenging the Third Circuit’s 2006 decision overturning the $550,000 fine for the broadcast incident, which the popular press has euphemistically labeled the “wardrobe malfunction.”  The Justices, in a brief order, told the Circuit Court to reconsider its ruling, based upon Fox TV.

The case, back in the Circuit Court in May of that year, went through one round of briefing, an oral argument in February 2010, and three added rounds of briefing following the argument.   The final ruling, with Circuit Judge Marjorie O. Rendell writing for the majority — herself and Circuit Judge Julio M. Fuentes — once more nullified the CBS fine, concluding that the Commission’s action was “arbitrary and capricious.”  Judge Anthony J. Scirica dissented.

The image of performer Janet Jackson’s right breast occurred during CBS-TV’s broadcast of the show at half-time during Super Bowl 38 on February 1, 2004, when another performer, Justin Timberlake, pulled off one-half of the “bustier” (a form-fitting garment) that Ms. Jackson was wearing.  He did so, apparently as part of the script, during a song in which he warbled, “gonna have you naked by the end of this song.”  The exposure apparently shocked a good number of people who had seen it, and they complained to the FCC.   That case resulted in the imposition of a maximum fine, totaling $550,000, that was imposed on the CBS-affiliated stations that are directly regulated by the Commission.

In Wednesday’s ruling, the three-judge panel was split over the meaning and impact on this case of the Supreme Court’s 2009 decision in Fox TV.   The majority concluded that the Justices’ ruling did not undermine the Circuit Court’s earlier ruling, some significant part of which Judge Rendell included as part of the new majority opinion joined by Judge Fuentes.   Judge Scirica, the author of the prior ruling, dissented this time, contending that the Fox TV decision did undercut the legal basis for the prior ruling.   Judge Scirica, though, did not vote to uphold the fine, saying that the FCC should reconsider it using a proper legal standard.

This part of the dispute was over what the FCC’s policy on broadcast “indecency” was at the time it imposed the fine on CBS.   The Circuit Court majority concluded that, at the time of the Super Bowl broadcast, the FCC policy tolerated both fleeting images and fleeting expletives.  It changed its policy, later in 2004, the majority concluded, to impose a flat ban on either images or words that were broadcast fleetingly.

Under federal administrative law, an agency like the FCC must supply “a reasoned explanation for its departure from a prior policy,” Judge Rendell noted.  But, she concluded, “the FCC has not offered any explanation — reasoned or otherwise — for changing its policy on fleeting images.”  Thus, its policy was invalid, and so was the fine.

By contrast, Judge Scirica in dissent concluded that the Fox TV decision by the Supreme Court “compels the conclusion that the fleeting exemption [prior to the 2004 change] was limited to a particular type of words.   Accordingly, I cannot say the orders in this case represented a change in agency policy, and I would hold the FCC’s indecency finding passes muster” under federal law.  But, he said, the Commission had based the $550,000 fine on the wrong provision of FCC law, and did not properly apply the legal principle that CBS stations had to know they were violating agency policy by allowing the “wardrobe malfunction” to be aired on TV.

News agencies quoted an FCC spokesman as saying that “while we are disappointed by the court of appeal’s decision, we note that the court overturned the FCC’s 2006 forfeiture order on narrow procedural grounds.”   The agency statement added that it would use “all the authority at its disposal” to ensure that broadcasters “serve the public interest.”

The FCC has the option of asking the Circuit Court to reconsider its ruling en banc, or of taking the case directly on to the Supreme Court.








Recommended Citation: Lyle Denniston, “Wardrobe malfunction” — Act II, SCOTUSblog (Nov. 2, 2011, 7:53 PM),