Fighting the Jackson Fine
How First Amendment lawyers would attack the FCC's ruling
By Bill McConnell -- Broadcasting & Cable, 9/26/2004 8:00:00 PM
CBS will likely go to court to fight the FCC's $550,000 fine that the network received for airing Janet Jackson's Super Bowl breast flash. If and when the court battle arrives, say First Amendment lawyers, the company will have plenty of avenues of attack on a ruling they consider rife with legal weakness. Furthermore, they contend that the FCC is motivated by pressure from angry politicians and family-values activists rather than sound legal reasoning.
"They are really stepping out of bounds here," says Kathleen Kirby, who represents TV stations for Wiley, Rein & Fielding.
"This is a decision the FCC would not have issued at any other point in its history," adds Erwin Krasnow, of Washington firm Garvey, Schubert Barer, noting the FCC partially justified its sanction on the unprecedented number of complaints it received: 540,000. "It demonstrates the power of mass e-mail campaigns." Indeed, a new Kaiser Family Foundation study shows that, seven months after the infamous breast flash, few American parents—less than one in five—now care much at all.
CBS officials declined to outline their course of action for the fine, but a voluntary payment seems out of the question, given Co-President Les Moonves' comments to TV critics in July. Any fine, he insisted, would be "patently ridiculous, and we're not going to stand for it."
Another sign CBS is prepping for a fight: It has hired Robert Corn-Revere, the Davis Wright Tremaine attorney who successfully argued Playboy Channel's challenge against tough scrambling requirements in 1998. The Supreme Court's ruling in that case shielded cable operators from the content restrictions broadcasters face. Corn-Revere also represents CBS parent Viacom, Fox and other media companies in another major First Amendment case seeking to overrule an FCC decision declaring broadcasts of the word fuck are indecent regardless of the context.
Corn-Revere would not comment on either of his pending cases.
The brewing court battle is vital to the industry because it a major front in a legal campaign likely to land broadcasters and FCC before the Supreme Court to argue the fate of federal restrictions on indecent programming.
The commission's punishment for the Janet Jackson performance has been widely expected for months. The agency last week ruled that the 20 CBS-owned TV stations each face a maximum $27,000 fine for violating anti-indecency rules that restrict the airing of sexually explicit programming before 10 p.m., when children are likely to be in the audience. CBS has 30 days to explain why the FCC should withdraw the fine. If the FCC sticks to its decision, CBS can pay up, appeal the ruling in federal court, or sit back and let Justice Department lawyers sue for payment.
Several First Amendment advocates predicted that the FCC faces an uphill battle explaining to judges why Jackson's bare breast is indecent under the FCC's narrow definition. To be considered indecent, FCC rules state that a program must depict sexual or excretory activities in a way that is patently offensive under "contemporary community standards." Breasts aren't sex organs, they note.
While airing a nude breast by itself isn't necessarily indecent, the FCC counters, Jackson and fellow halftime performer Justin Timberlake crossed the line because her bustier was ripped open at the end of a performance filled with dance moves simulating sexual activities. Also, Timberlake sang, "Gonna have you naked by the end of this song," immediately before ripping her top open.
"It's amazing how little legal reasoning there is about why Jackson's performance was indecent," says Kurt Wimmer of Covington & Burling.
Attorneys say the FCC also went too far by suggesting that Viacom officials should have known Jackson and Timberlake would attempt something outrageous and should have ordered producers to be ready to black out objectionable actions. Even though CBS and Viacom officials deny all knowledge of the performers' plans, the FCC insists rehearsal clips they previewed gave advance warning that something out of bounds could happen. Says Kirby, "[FCC] reasoning extends way beyond the action in this case."
Supporters of the fine, however, say the media attorneys are simply making excuses for their industry clients. The FCC would have been on firm ground to fine all CBS affiliates, not just the ones owned by the network. "Frankly, the commission didn't go far enough," says Brent Bozell, president of the Parents Television Council. "They all violated the law and should be punished."
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