FCC Asks SCOTUS to Reinstate CBS Nip Slip Fine

Yesterday the Federal Communications Commission asked the Supreme Court to review an appeals court decision overturning the $550,000 fine that the agency imposed on CBS after Janet Jackson's notorious "wardrobe malfunction" during the 2004 Super Bowl halftime show. In 2008 the U.S. Court of Appeals for the 2nd Circuit deemed the fine "arbitrary and capricious," in violation of the Administrative Procedure Act (APA), because punishing the network for an unplanned (by CBS) glimpse of nipple during a live broadcast represented an unexplained departure from longstanding FCC policy. The following year, the Supreme Court overturned a similar 2nd Circuit decision that said punishing Fox for "fleeting expletives" violated the APA, and it instructed the appeals court to reconsider the CBS case in light of that ruling. Last November a three-judge panel of the 2nd Circuit reaffirmed the nip slip decision, and in January the full court declined to rehear the case. Now the FCC wants the Supreme Court to say the 2nd Circuit erroneously accepted the statutory argument against the CBS fine.

Meanwhile, however, the Fox case has come back to the Court, this time as a constitutional challenge to the FCC's overall ban on broadcast "indecency," which was the justification for both fines. The Court heard oral argument in that case last January, and it is expected to rule within the next two months. If it decides that the FCC's indecency regulations violate the First Amendment (a distinct possibility), the wrangling over the APA will be irrelevant. Hence Solicitor General Donald Verrilli is asking the Court to take up FCC v. CBS after it decides FCC v. Fox:

The court's decision in Fox II may shed light on the proper resolution of this case. This petition therefore should be held for Fox II and then disposed of as appropriate in light of the court's decision.

If the Court rules as it should in FCC v. Fox, FCC v. CBS will be moot.

The FCC's petition is here (PDF). Previous coverage of the FCC's indecency ban here.

Comments

[The Unknown Pundit]

Thanks for keeping us abreast of the situation.

[MP]

Reason is always first at exposing the important issues of the day.

[Plisade]

…while it fleshes out…

[juris imprudent]

FCC wants to nip this in the bud.

[Fist of Etiquette]

Technically they should have fined CBS a tat.

[Killazontherun]

Could we not only fire the sons of bitches who are pursuing the matter but make them reimburse us for the time they spent on the public’s dime wasted on their personal project?

[Number 2]

Wasn’t Hopey McChange supposed to put a stop to all this? Or is this another case, like medical marijuana, that individual bureaucrats are supposedly violating Administration policy, and the Pres is afraid to stop them because it’s an election year….

[Evil Otto]

Anything that discourages the halftime shows at the Super Bowl is fine with me.

[Number 2]

This case comes from the Third Circuit, not the Second, and it raises an important issue beyond obscenity: can an agency punish a party for an alleged violation of law based on an interpretation or policy that the agency did not announce until after the party had acted.

CBS argued, and the Third Circuit agreed, that the FCC had not announced that it would punish “fleeting expletives” until after the fact. The FCC argued that CBS “should have known” that the FCC was moving in that direction based on a single intermediate-level determination the FCC had made, and argued that the “fleeting expletive” exception did not apply to images — despite numerous cases in which it had.

It is not clear that the Court would take this case even if it reverses Fox, because this case turns on facts rather than a principle of law.

[R C Dean]

This sure sounds like a principle of law type issue to me:

can an agency punish a party for an alleged violation of law based on an interpretation or policy that the agency did not announce until after the party had acted.

[Juice]

Janet Jackson needs to do a PLayboy spread before she gets too old.

[R]

Too late.

[np]

If it decides that the FCC’s indecency regulations violate the First Amendment (a distinct possibility)

How about a distinct certainty? “Congress shall make no law” seems pretty clear cut to me.

(yes, it’s under the executive, but it was established by Congress, and it’s powers granted by Congress)

[np]

Coincidentally I was just reading Voltairine de Cleyre for the first time a few hours ago this morning. Regarding free speech she writes:

And now, what has Anarchism to say to all this, this bankruptcy of republicanism, this modern empire that has grown up on the ruins of our early freedom? We say this, that the sin our fathers sinned was that they did not trust liberty wholly. They thought it possible to compromise between liberty and government, believing the latter to be “a necessary evil,” and the moment the compromise was made, the whole misbegotten monster of our present tyranny began to grow. Instruments which are set up to safeguard rights become the very whip with which the free are struck.

Anarchism says, Make no laws whatever concerning speech, and speech will be free; so soon as you make a declaration on paper that speech shall be free, you will have a hundred lawyers proving that “freedom does not mean abuse, nor liberty license”; and they will define and define freedom out of existence. Let the guarantee of free speech be in every man’s determination to use it, and we shall have no need of paper declarations. On the other hand, so long as the people do not care to exercise their freedom, those who wish to tyrannize will do so; for tyrants are active and ardent, and will devote themselves in the name of any number of gods, religious and otherwise, to put shackles upon sleeping men.