{"id":49929,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/a-federal-appeals-court-invalidates-the-federal-communications-commissions-massive-fine-for-the-nipplegate-super-bowl-incident-the-decision-and-its-implications.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"a-federal-appeals-court-invalidates-the-federal-communications-commissions-massive-fine-for-the-nipplegate-super-bowl-incident-the-decision-and-its-implications","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/a-federal-appeals-court-invalidates-the-federal-communications-commissions-massive-fine-for-the-nipplegate-super-bowl-incident-the-decision-and-its-implications.html","title":{"rendered":"A Federal Appeals Court Invalidates the Federal Communications Commission’s Massive Fine for the “Nipplegate” Super Bowl Incident: The Decision and Its Implications"},"content":{"rendered":"\n
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A Federal Appeals Court Invalidates the Federal Communications Commission’s Massive Fine for the “Nipplegate” Super Bowl Incident: The Decision and Its Implications<\/h1><\/td>\n <\/tr>\n

By JULIE HILDEN <\/h2>
<\/a><\/td>\n <\/tr>\n

Monday, Aug. 04, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

On July 21, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued its decision<\/a><\/strong> in a closely-watched case arising out of the infamous moment during the 2004 Super Bowl when Janet Jackson\u2019s breast was bared for a fraction of a second. The Federal Communications Commission (FCC) imposed a $550,000 fine on CBS, the broadcaster, based on Jackson\u2019s nudity. CBS then challenged the fine in court. <\/p> \n<\/span>\n \n \n\n\n

The panel ruled in CBS\u2019s favor. Unfortunately, however, its ruling is largely limited to the particular context of FCC policy as it stood at the time of the Super Bowl. If the same kind of incident were to happen this year, the fine might be upheld \u2013 especially if the performer at issue were an employee of the broadcaster, rather than an independent contractor like Janet Jackson. <\/p>\n \n<\/span>\n

The Ruling: Based on Administrative Law, and the FCC Rulings of Which CBS Had Notice at the Time of the Super Bowl<\/strong><\/p>\n

<\/strong>The crux of the panel\u2019s ruling was simple: The Super Bowl occurred on February 1, 2004, and at that point, CBS was not on notice that the kind of \u201cfleeting\u201d nudity that occurred when Jackson\u2019s breast was bared would be so harshly punished by the FCC \u2013 or, indeed, punished at all. Rather, CBS had every reason to think that such fleeting nudity would fall into a well-established exception to FCC policy covering fleeting indecency. <\/p>\n

As the court\u2019s opinion, written by Chief Judge Scirica, explained, it is a basic principle of administrative law that a federal agency \u201ccannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.\u201d And prior FCC decisions had \u201creiterated the agency\u2019s policy that isolated or fleeting material would not be considered actionably indecent\u201d \u2013 meaning that CBS was actually on clear notice of a policy opposite<\/u> to the one that inspired the fine. <\/p>\n

The agency did eventually give proper notice that it was changing its policy, the panel held, but not until shortly after<\/u> the relevant Super Bowl, on March 3, 2004. That day, the FCC renounced its prior \u201cfleeting expletives\u201d policy. I discussed that policy in another column<\/a><\/strong>; a related decision by the U.S. Court of Appeals for the Second Circuit will be reviewed by the U.S. Supreme Court<\/a><\/strong>. <\/p>\n

Because of this policy change, the Third Circuit\u2019s decision will not assist today\u2019s broadcasters \u2013 who are on notice of the change \u2013 in avoiding the imposition of fines like the one inflicted upon CBS. <\/p>\n

Why Did the FCC Try to Enforce a Policy of Which CBS Was Not on Notice at the Time of the Super Bowl? <\/strong><\/p>\n

Given that it had only changed its policy after<\/u> the Super Bowl, how did the FCC have the nerve to impose this whopping penalty on CBS? <\/p>\n

The simple answer probably lies in the combination of political necessity and arrogance. After all, there was virtually no chance that the FCC would face any financial penalty if it lost the case, and even if it did lose, the loss could easily be spun as the decision of a liberal court. In contrast, if the FCC had not<\/u> tried to fine CBS, there would have been a public outcry, and angry editorials. <\/p>\n

Still, the FCC had to come up with some other answer than sheer politics for the purposes of this litigation. Thus, the FCC tried to claim there had been no policy change. However, the Third Circuit panel made short work of that contention in light of the FCC\u2019s post-Super Bowl statement, noted above, expressly changing the policy. <\/p>\n

In addition, the FCC tried to claim that its policy on fleeting expletives was different from its policy on fleeting nudity (and other kinds of visual \u201cindecency\u201d). But the Third Circuit panel made short work of that claim too \u2013 showing that these two categories of indecency had been treated identically in the past. The panel concluded that \u201cthe FCC consistently applied identical standards and engaged in identical analyses when reviewing complaints of potential indecency whether the complaints were based on words or images.\u201d <\/p>\n

Ironically, the FCC would probably have had good reason to eschew this robotic application of the same standard in different contexts, had it chosen to do so. After all, the reasons parents don\u2019t want their children to hear expletives, and the reasons they don\u2019t want them to see nudity \u2013 that is, the core reasons for which the FCC is purportedly regulating each type of \u201cindecency\u201d in the first place \u2013 are quite different. <\/p>\n

Yet because \u2013 unlike the networks it regulates — the FCC knew it would suffer no financial penalty if it took its eye off the ball, it missed the chance to make the kind of reasoned distinction that might actually have changed the court\u2019s mind. As a result, it was unable failure to draw upon its own precedent to defend the word\/image distinction in court. <\/p>\n

The lesson here, then, is that FCC\u2019s laziness can actually have a cost \u2013 albeit not a financial one, as is the case for the broadcasters it regulates, but a real cost nonetheless. If an agency is clear and candid about what it is doing \u2013 including when its policies change or differ in different scenarios — then it is very hard to invoke administrative law to invalidate its actions. Ultimately, administrative law is procedural (although it can have important substantive consequences) and if procedures are followed, an agency can be virtually untouchable. <\/p>\n

An Additional Issue: Was CBS Vicariously Responsible for Timberlake and Jackson\u2019s Actions?<\/strong><\/p>\n

<\/strong>Interestingly, at least two judges on the Third Circuit panel went beyond the Administrative Procedure Act claim on which CBS won, to discuss another ground on which CBS also might<\/u> have won. (It is somewhat unclear, at least to this reader, whether the third judge on the panel, Judge Rendell, who dissented in part and concurred in part, joined this section of the opinion.) <\/p>\n

Judge Scirica\u2019s opinion for the Court noted that this additional issue \u201cwas extensively briefed by the parties and amici.\u201d Moreover, from a First Amendment perspective, it is nice for broadcasters to gain at least some clarity regarding when massive penalties like the one with which CBS was threatened can legitimately be imposed. But overall, I think it would have been wiser for the two judges in the panel majority to have left this discussion for another case, and another day.<\/p>\n

The alternative argument went as follows: Janet Jackson (and Justin Timberlake, who caused the nudity, knowingly or unknowingly, by removing part of Jackson\u2019s costume) were independent contractors, not employees of CBS. Thus, their actions cannot be imputed to CBS based on the theory of respondeat superior \u2013 the theory that establishes an employer\u2019s vicarious responsibility for its employee\u2019s actions. <\/p>\n

After applying the multi-factor test for determining whether a person is an employee or an independent contractor, the panel majority held that, indeed, Timberlake and Jackson were independent contractors. They had been hired for brief, one-time performances; they chose their own choreographers, backup dancers and other assistants; and they were paid in a lump sum, rather than being salaried. Thus, any respondeat superior theory, premised on the FCC\u2019s claim that they were employees, would necessarily fail. <\/p>\n

The Implications of the Third Circuit Decision <\/strong><\/p>\n

<\/strong>What should broadcasters take from this decision, going forward? I think there are two pragmatic lessons to be learned. <\/p>\n

First \u2013 and very unfortunately, from a First Amendment perspective \u2013 broadcasters seeking to avoid fines must be ultra-cautious about any bit of indecency getting on the air, however quick and inadvertent. (Remember, Jackson\u2019s flash of breast occupied less than a second, and the FCC\u2019s subsequent crackdown on fleeting expletives targeted words it takes about a second to say.) <\/strong><\/p>\n

This caution might take the form of more carefully vetting live performers\u2019 scripts beforehand (though there is no evidence that this would have worked in the case of Jackson and Timberlake, as the Third Circuit panel\u2019s decision reflects). <\/p>\n

A much more effective solution, however, is video delay — which offers strong protection from the kind of fines CBS faced. CBS used a brief audio delay, but no video delay, for the 2004 Super Bowl. With a seeming FCC crackdown on visual indecency, broadcasters may be well-advised to use both types of delay at live events if they want to avoid FCC fines in the future \u2013 at least, when their own employees are on the air. <\/p>\n

Second, broadcasters truly interested in freedom of speech may want to make greater use of independent contractors and\/or unpaid guests. (As I discussed in my last column<\/a><\/strong>, using independent contractors has an advantage for purposes of defamation law as well.) Not only did the independent contractor argument give CBS another point to make, but I think it also made the facts of the case more sympathetic. When an independent contractor, hired for a single performance, runs amok and goes off script, what chance (absent video delay) does the broadcaster really have to head off the problem? <\/p>\n

In the Super Bowl case, for instance, Timberlake had performed the same song on television previously without incident; the nudity was unexpected, in this context, from Jackson, too. It seems CBS was genuinely blindsided. That would have been harder to say had Timberlake and Jackson been longtime employees, well known to others at CBS. <\/p>\n

Broadcasters are still burdened by the Supreme Court\u2019s decision to cling to the antiquated notion that their licenses impose upon them a sacred duty to the public \u2013 a notion that developed when licenses were prized and scarce, and cable, let alone the Internet, was not an option. But individuals, fortunately, have no such duty \u2013 and still have the full complement of First Amendment rights that broadcasters are wrongly thought to have sacrificed. For this reason, using independent contractors may be a savvy way to maximize First Amendment rights, in this context and others.<\/p>\n

\n

\n\n\n<\/a>Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden’s novel, 3<\/i>, Kirkus Reviews praised Hilden’s “rather uncanny abilities,” and Counterpunch called it “a must read…. a work of art.” Hilden’s website, www.juliehilden.com<\/a>, includes free MP3 and text downloads of the novel’s first chapter.<\/em>\n<\/p>


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