After two-and-a-half years, the Janet Jackson/Justin Timberlake Super Bowl halftime incident got its day in court Tuesday when CBS and the Federal Communications Commission presented oral arguments to a three-judge panel of the Third Circuit Federal Court of Appeals in Philadelphia.
According to CBS, the incident was regrettable but virtually impossible to have anticipated or prevented given that it had never happened before, a;though the network said it has taken "extraordinary" steps to make sure it never happens again.
The FCC argued that it was just doing its job in the face of voluminous complaints and that it is on solid legal ground.
CBS's case was argued by veteran first Amendment attorney Robert Corn-Revere, while Eric Miller, who had defended the FCC's profanity findings against Fox in the Second Circuit (See below), took the reins for the FCC.
Miller was working for the FCC back when the Fox case was argued, but has since moved to Justice where he is assistant to the Solicitor General.
In what was described as an unusual move for the court, each side got five uninterrupted minutes to make their case, followed by about a half-hour of questioning from the judges. "That suggests they understand the importance of the case," said one network observer in the courtroom. Normally, the minute the lawyers open their mouths the judges can and do start asking questions, said a veteran of such hearings.
The arguments essentially mirrored those in the briefs filed in the case--see below--but one highlight, said the network attendee, was Corn-Revere's five-minute rebuttal at the end.
Pointing out the date--Sept. 11--Corn-Revere suggested that there were wider implications to a content crackdown, citing the reluctance of some CBS affiliates to air a critically acclaimed 9/11 documentary for fear or running afoul of FCC content regs.
The industry observer pointed out that during questioning over the issue of whether CBS was liable for the conduct of Jackson and Timberlake because the network was essentially their boss, Judge Marjorie Rendell (the other judges were Chief Judge Anthony Scirica and Judge Julio Fuentes) said that when house painters came to paint her house, she would tell them what colors to paint it, and where, but that didn't makre her their boss. But the house painters supply their own tools, said Miller, arguing that that CBS had supplied the set. But I supply the house, she answered, questioning the distinction.
The judges asked some "pointed" questions about the degree of CBS' control over the performers, as well as about the availability of video tape delay. The commission contends CBS could have used the video tape delay, since teh network instituted it for the Emmys a week later. CBS countered that it could not reasonably have been expected to antiicipate needing it.
Milller said that CBS' control over the content was demonstrated by the fact that it had singer Kid Rock change a line in which he was talking about driving a brand new Lexus because one of the Super Bowl's sponsors was Cadillac.
Corn-Revere argued that CBS had done everything a broadcaster could be reasonably expected to prevent an incident like the one that occurred. Corn-Revere also pointed out that Janet Jackson's representative had promised that nothing that hadn't happened in the dress rehearsal of her performance would happen in the actual performance.
There was also said to be a "fair amount of discussion" of whether the FCC followed the administrative procedures act or whether its decision had been arbitrary and capricious.
If the court finds that the FCC did not sufficiently explain a change in enforcement policy on fleeting images--as the court in the Fox case found in terms of fleeting profanities--it could remand the decision back, but that would almost certainly mean wiping out the fine against CBS as well.
Now that the argument is over, the next stop on CBS' agenda is the response to the FCC (due at the end of the week) to questions raised in the license challenge stemming from its airing of an episode of Without a Trace
The issue, as the FCC summed it up in its brief to the court last December, was: "As much of the country watched in disbelief, Justin Timberlake ripped off part of Janet Jackson’s clothing during CBS’ broadcast of the [2004] Super Bowl XXXVIII halftime show, exposing her breast to a nationwide television audience. The FCC reasonably concluded that, although brief, this display of nudity violated longstanding federal prohibitions on the broadcast of indecent material."
The CBS arguments echoed its brief, filed with the court last October, which echoed the network's long-standing argument, now more than two years old, that the broadcast was not indecent and that the FCC needs to return to a more restrained enforcement policy, which it "abandoned" after failing to turn up any evidence CBS knew about or participated in the Super Bowl stunt. The FCC's efforts to justify the decision, CBS told the court back in October, is a "prime example of a preordained outcome in search of legal justification."
In a statement following its arguments, CBS said Tuesday: "Today, CBS finally had its day in court to argue that the FCC erred when it sanctioned CBS for broadcast indecency as a result of the incident during the 2004 Super Bowl halftime show. That incident, although inappropriate and regrettable, was not and could not have been anticipated by CBS and does not justify the penalty imposed by the FCC. We are hopeful that the court will agree, since what occurred surprised CBS as much as our audience. Whatever the court decides, CBS has taken extraordinary steps to help prevent anything like this incident in the future.”
In July 2006, in order to take the case to federal court, CBS paid the $555,000 fine and filed its appeal. The network's affiliates were not fined, even though they also carried the fraction of a second's worth of exposed breast.
The FCC in May denied CBS' challenge to the commission's $550,000 fine, rejecting CBS' assertion that the broadcast was not indecent. CBS' response, essentially, had been: "See you in court."
The FCC's response was 'Bring it on,' countering, "CBS’ continued insistence that the halftime show was not indecent demonstrates that it is out of touch with the American people."
CBS has long said that the decision shouldn't stand. CBS president Leslie Moonves back in 2004 told TV critics that the fine was "patently ridiculous" and that the company was "not going to stand for it."
The FCC, meanwhile, argued that it received "an unprecedented number" of complaints about the broadcast and that it concluded that it was graphic, shocking, pandering and, though fleeting, was still sufficiently explicit and "titillating" (no pun admitted) to warrant action.
It also found the offense to be willfull. "The government has a compelling interest in protecting children and the privacy of the home," the FCC has argued.
In June, the Second Circuit Court of Appeals ruled that the FCC had not justified its decision to find fleeting expletives in two Fox music-awards-show broadcasts indecent. The FCC decided not to seek full court review of the ruling that its “fleeting profanity” findings against Fox were "arbitrary and capricious," but it still has three weeks to decide whether or not to appeal it to the Supreme Court.
Separately, the Senate Commerce Committee passed a bill in the wake of that decision that would give the FCC express permission to regulate fleeting profanities, although it has not gotten Senate floor time.
