WASHINGTON (BP)–The U.S. Supreme Court May 4 ordered the U.S. Third Circuit Court of Appeals in Philadelphia to reconsider its ruling in the 2004 Super Bowl halftime case involving Janet Jackson in light of the high court’s recent decision on fleeting obscenities.
Last year the Third Circuit overturned the Federal Communications Commission’s $550,000 fine against CBS, saying the FCC deviated from its 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ‘shock treatment’ for the audience.”
But on April 27, the Supreme Court narrowly upheld the ability of the FCC to prohibit certain indecent language on broadcast television, even if it is a one-time instance. In that 5-4 majority opinion, the court reversed a lower court ruling by the Second Circuit Court of Appeals that had gone against the FCC.
The Supreme Court’s single-sentence order Monday remanded the Super Bowl case back to the Third Circuit “for further consideration in light of FCC v. Fox Television Stations, Inc.,” the name of the most recent Supreme Court decision.
Tim Winter, president of the Parents Television Council, applauded the Supreme Court’s most recent order.
“Today the Supreme Court is siding not only with families, but with Congress and the overwhelming will of the American people in asking the Third Circuit to take another look at its absurd ruling,” he said in a statement.
“Just last week, the high court affirmed the FCC’s ability to sanction a broadcaster for so-called ‘fleeting’ violations of the broadcast decency law. Today’s decision is absolutely consistent with last week’s announcement,” Winter said.
The Third Circuit last July said the Super Bowl incident was a “deceitful and manipulative act that lasted nine-sixteenths of one second” and that CBS was not responsible “for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show.” Jackson and Timberlake sang during the halftime show, with Jackson infamously exposing herself at the end of the performance.
Chief Judge Anthony Scirica, who wrote the circuit court opinion, said the FCC failed to demonstrate that CBS willfully helped orchestrate the indecency, and such willfulness is “the constitutional minimum showing for penalizing the speech or expression of broadcasters.” The $550,000 fine represented the maximum $27,500 levied against each of the network’s 20 owned-and-operated stations.
But in the April 27 Fox decision, the Supreme Court held the broadcaster to a higher standard, noting that children were watching the awards programs in question.
“Here it suffices to know that children mimic the behavior they observe — or at least the behavior that is presented to them as normal and appropriate,” Supreme Court Justice Antonin Scalia wrote for the majority. “Programming replete with one-word indecent expletives will tend to produce children who use one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission.”
Scalia said technological advances — presumably so-called seven-second delays — give broadcasters the ability to bleep out language on live TV. Scalia also criticized the Second Circuit for doubting that an FCC policy allowing fleeting expletives would lead to a growth in their usage.
“To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance,” he wrote.
In response to the Supreme Court’s ruling on the Super Bowl case, Winter of the Parents Television Council expressed hope that broadcasting might receive more adequate oversight in the future.
“We are grateful that the Supreme Court is asking the lower court to take another look at its ruling. If broadcasters are going to use the publicly owned airwaves for free, then they must agree to abide by the terms of their licenses and by the broadcast decency law, rather than fight it at every turn,” Winter said. “We call on the FCC to act quickly on the backlog of broadcast indecency complaints filed by the public.”
In a statement, CBS said the Supreme Court’s decision was not a surprise given the Fox ruling, and CBS expressed confidence that the court would again find that the indecency could not have been anticipated by the network, the Associated Press said.
–30–
Compiled by Baptist Press staff writer Erin Roach.
