You Mean All These Years of Post-Janet Jackson Panic Were For Nothing?

An appeals court has voided the FCC fine against Janet Jackson’s “wardrobe malfunction,” ruling that:

The FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter.

In other words, the court (this court, anyway; there will be other appeals, most likely) is saying FCC shouldn’t have been retroactively changing the rules, and it shouldn’t have fined the network for something without being able to demonstrate that the network could have anticipated or controlled it. The court doesn’t actually agree with CBS that they couldn’t block the infamous boob-flash; it just hasn’t been demonstrated one way or another, because the FCC didn’t or couldn’t produce evidence that CBS could have blocked the nipple that changed America:

Because the Commission carries the burden of showing scienter, it should have presented evidence to demonstrate, at a minimum, that CBS acted recklessly and not merely negligently when it failed to implement a video delay mechanism for the Halftime Show broadcast.

It seems like the FCC did a pretty poor job of arguing its case. The whole case hinged on the question of audio delays vs. video delays: the court’s opinion explains that CBS had an audio delay for naughty words, but not a video delay for naughty images. The FCC argued that CBS should have had a video delay as well, and that it should be held liable for not having one. You’d think a better argument on that subject could have stuck, because the court found, in the same opinion, that the FCC’s policy on “fleeting” obscenity applied to images as well as words. (The FCC was arguing otherwise.) If CBS could produce evidence that the FCC’s “fleeting” policy applied across the board, you’d think that the FCC’s lawyers could have come up with evidence that networks are expected to bleep out naughty pictures when they appear. But they either didn’t or couldn’t, and, in this round at least, they lost.

One of the more interesting bits in the opinion, available here as a PDF, comes in a footnote where the judge says that though the FCC says it received “an unprecedented number of complaints” about Janet Jackson’s breast, they don’t have an actual number that they can produce. The judge quotes CBS as follows (note: this is not from the judge, this is from a reply filed by CBS):

“Of the ‘over 542,000 complaints concerning the broadcast’ the FCC claims to have received, over 85 percent are form complaints generated by single-interest groups. Approximately twenty percent of the complaints are duplicates, with some individual complaints appearing in the record up to 37 times.