Court Sets Janet Jackson Re-Hearing For Feb. 23

Oral arguments slated for Third Circuit with 30 minutes given per side

By John Eggerton -- Broadcasting & Cable, 1/5/2010 3:14:18 PM

The courts will take another look at Janet Jackson's almost-bare breast.

Oral argument has been set for Feb. 23 in the Third Circuit court of appeals re-hearing of the $550,000 indecency fine against CBS-owned stations for the 2004 Janet Jackson/Justin Timberlake Super Bowl reveal.

That is according to an attorney who received the notice from the court.

Argument is slated for 1:30 p.m., with 30 minutes per side, which is a lot of time as these arguments go, according to veterans of the process.

"The Third Circuit does longer arguments," said an attorney for one of the parties backing broadcasters, "but this is a lot even for them.  "The order shows that the court takes this case seriously."

Veteran First Amendment attorney Robert Corn-Revere of law firm Davis Wright Tremaine, who has been representing CBS from the outset, is expected to argue the case.

Oral arguments in the Second Circuit on that court's rehearing of the FCC's profanity finding against Fox for swearing on awards shows are scheduled for Jan. 13.

Both courts found the FCC's indecency findings were arbitrary and capricious, but the Supreme Court disagreed and remanded both back to the lower courts.

In its brief to the court, the FCC, under new chairman Julius Genachwoski, defended the $550,000 indecency fine it leveled against CBS and asked the Third Circuit to allow it to investigate further to prove its assertion that CBS had the means to block the reveal and chose not to do so.

In its brief, CBS likened the FCC to an obsessed sea captain and essentially asked the court not to hand it another harpoon.

CBS told the court that to allow the FCC to drag the case out any further with its proposed investigation would further chill speech. "The First Amendment costs to CBS and all broadcasters inherent in dragging out this proceeding - as the FCC here requests - far exceed just the legal fees and time consumed by the prolonged prosecution of the case," said the company. "Regulatory agencies put pressure on regulated firms in numerous ways, some more subtle than others, and subjecting programming decisions to repeated government second-guessing is one of the least subtle of all."
The Supreme Court has asked the Third Circuit to rethink its decision that the FCC's fine of CBS stations for the fleeting nudity in the Janet Jackson Super Bowl reveal was arbitrary and capricious. That came after the High Court ruled that the FCC had justified citing Fox stations for fleeting profanity. The Second Circuit Court of Appeals had also found the defense of that policy "arbitrary and capricious."
And while CBS in its brief said the Third Circuit could reaffirm its finding of "arbitrary and capricious" without going to the question of the constitutionality of the FCC's indecency enforcement, the company said it was time for such an updated analysis.
"This Court should embrace the Supreme Court's invitation to assess the constitutionality of the indecency rules given current realities and find that most applications can no longer survive First Amendment scrutiny," the brief said.