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“Wardrobe malfunction” case finally ends

More than eight years after the broadcast of perhaps the most controversial 9/16ths of a second in TV history, the government’s case against CBS-TV finally collapsed in the Supreme Court Friday.  Gone with a Federal Communications Commission plea, which the Court denied, was a $550,000 fine on the network for the fleeting exposure of one of performer Janet Jackson’s breasts during the half-time show at the Super Bowl (a pro football game) in early February 2004.

The end of that case was very good news for the TV industry, but — after two trips to the Supreme Court in that case, and two trips to the Court in a separate Fox TV case — television and radio broadcasters still have no final word on whether the FCC’s current policy against “indecent” broadcasts is unconstitutional.   And also unsettled at this point is whether the FCC will reconsider that policy — as Justice Ruth Bader Ginsburg indicated on Friday that it should.

The Court had been holding on to the FCC appeal in the so-called “wardrobe malfunction” case (FCC v. CBS Corporation, et al., 11-1240) until it had decided the latest round in the Fox TV case (FCC v. Fox Television Stations, et al., 10-1293).  On June 21, in the Fox case, the Court struck down FCC actions against Fox and ABC-TV for fleeting use of four-letter profanity or nude scenes, but it bypassed the First Amendment issue in doing so.  Instead, it ruled only that the two broadcast entities had not had fair notice that the FCC would crack down on fleeting expletives and scripted nudity, which it did in March 2004, after the Fox and ABC shows.

The Court’s action in that case, and its Friday order bypassing review of the Super Bowl case, left uncertain just what the FCC would do next.  There has been no sign that it would abandon its view that even non-repeated profanity and brief nudity exposures violated federal law or FCC policy.  In a brief separate opinion on Friday, Justice Ginsburg suggested that the FCC now re-think its policy in the wake of “technological advances” and the meandering path the FCC’s policy had taken since the Court first allowed it to police indecency in a ruling in 1978, FCC v. Pacifica Foundation.

Because the Third Circuit Court had nullified the $550,000 penalty against CBS for the Super Bowl incident without giving the FCC a chance to reconsider, the Justices’ denial of that ruling did, indeed, end the case altogether.  The Third Circuit had not based its ruling against the FCC on the First Amendment rights of broadcasters, but rather on an administrative law rationale: that the FCC had not justified its shift in policy on TV exposures of “indecent” images.  Chief Justice John G. Roberts, Jr., filed a separate opinion, while joining in the denial of review, because he was skeptical that the FCC has, in fact, switched its policy regarding broadcast imagery.

He said he joined in the denial because everyone was now on notice that the FCC, at least under its current policy, will not tolerate fleeting nude exposures.  He did make a further legal point, writing that “it is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure.”  (As noted, the image of Janet Jackson’s breast, after her fellow performer, Justin Timberlake, tore away part of the top of her costume, lasted 9/16ths of a second.  Roberts commented in his separate statement that the two performers, after the show, “strained the credulity of the public by terming the episode a ‘wardrobe malfunction.’ ”  That label, though, has stuck for the rest of the country, and the incident has been known by that description ever since.)

What Justice Ginsburg was talking about in noting “technological advances” refers to an argument that many in commercial radio and TV are now making: that the arrival of cable TV and the Internet has made it unfair, and constitutionally discriminatory, for the government to police “indecency” only on radio and TV, and not on other new media.

The broadcast industry has also been using the changing technology argument to argue that the Supreme Court should not only reconsider its Pacifica decision of 34 years ago, validating FCC’s power to regulate indecency, but should also overrule  its 1969 decision in Red Lion Broadcasting v. FCC.   In Red Lion, the Supreme Court justified FCC regulation of over-the-air broadcasting on the theory that there was a scarcity in the broadcast spectrum, so the government needed to regulate it.  There is no longer anything like a scarcity in media, the broadcasters have been contending for years.

There was a chance that, during the Court’s consideration of this Term’s version of the Fox TV case that the Justices would make some comment or perhaps even examine anew the Red Lion precedent, but it did not do so.  However, because of that possibility, apparently, the Court also had been sitting on three other petitions from the broadcast industry.   Those three involved challenges to the FCC rules that limit so-called “cross-ownership” of newspapers and government-licensed broadcast stations.  Those rules have been in effect in varying forms since 1975.

At least one of those petitions explicitly asked the Justices to overrule the Red Lion precedent, as well as a 1978 decision, FCC v. National Citizens Committee for Broadcasting — a decision that found that the cross-ownership limits needed only to satisfy the most lenient constitutional test (rational-basis review).

On Friday, sending a signal that it is not ready to reconsider either Red Lion or the National Citizens precedent, the Supreme Court denied review in Media General, Inc., v. FCC, 11-691; Tribune Co. v. FCC, 11-696, and National Association of Broadcasters v. FCC, 11-698.  As is customary with denials of review, there was no explanation.

The orders in the broadcasting cases were among the final round of scheduled orders the Court issued at the close of its 2011-2012 Term.

In two of the other orders, the Court asked the U.S. Solicitor General to offer the views of the federal government on whether the Court should hear cases involving two issues.  The first is whether it is unconstitutional for a state to require home-care providers, caring for disabled persons, to pay fees to a union to represent their interests before agencies of state government.   That issue is a variation of the recurring legal dispute over the duty to pay union fees when one does not voluntarily join a union.  The new case is Harris, et al., v. Quinn, et al. (11-681), involving eight home-care providers in Illinois.

The second of the cases sent to the Justice Department for reaction was Retractable Technologies Inc., et al., v. Becton, Dickinson & Co. (11-1154).  That is a case over a patent on a medical syringe in which the needle retracts into a body to avoid an accident with the possibly infected needle.  The legal question is how a federal court is to interpret the language made by an inventor in a patent application, when the claim language is different from a separate description of how the invention is made or is to work.

There is no timetable for the Solicitor General to file the government’s views on those cases.

In other orders Friday, the Court simply denied review in five cases involving challenges to the new health care law (cases it had been holding for the ruling that came out on Thursday).   Some of those cases had sought to raise issues beyond those the Court had decided, but the Justices simply denied review of the five without comment.    Justice Elena Kagan was recused in one of the follow-up cases (Henry Ford Health System v. Health & Human Services Department, 11-975), but her disqualification apparently was based on the fact that that case had been moving through lower courts when Kagan was U.S. Solicitor General, and it had nothing to do with the demand by some of her critics that she remain out of any role in the main health care ruling itself.


Recommended Citation: Lyle Denniston, “Wardrobe malfunction” case finally ends, SCOTUSblog (Jun. 29, 2012, 11:51 AM),