Respondeat Superior, Anyone?
The FCC appeared to be making a novel case for CBS’ culpability in the Janet Jackson-Justin Timberlake disrobing duet.
Once I got past the very proper-sounding Justice Department attorney Eric Miller discoursing on Timberlake’s rip-off tip-off that he was "gonna get [her] naked by the end of this song," I was fascinated by the claim that CBS was vicariously liable for the performers actions because they were essentially employees of the network. That arguement was made in oral argument this week in CBS’ challenge of the $550,000 indecency fine
As one of the judges pointed out, it is unlikely either singer considered then Mel Karmazin or Leslie Moonves their boss, but the fine legal point (the doctrine of respondeat superior had to do with whether CBS’ control of the script and construction of the set meant you could impute (I like that word) liability to the network for their actions.
One piece of information that was new to me was that CBS put the kibosh on a Kid Rock line about riding in a Lexus because Cadillac was a sponsor of the Super Bowl. Verrrry Interesting, as Artie Johnson famously said. Wonder how much Kid Rock was going to get for dropping that name? Miller used the example to show the control CBS had over the performers.
But the FCC was not putting all its eggs in that legal basket, with Miller saying that CBS was doubly responsible because its managers should have known that Timberlake might pop her top.
I have to say that Miller was cogent and capable in his defense of the FCC’s position, though CBS attorney Robert Corn-Revere seemed a tad more at ease as he paried and thrust at the FCC’s arguments.. He should be. He is the lawyer who won the Playboy case that could be the underpinning of any future challenge to the FCC’s overall indecency regime.
That’s because in that case, the Supreme Court ruled that if a blocking mechanism is available, it, not content regulation, becomes the least restrictive means to further the government’s compelling end of protecting children. It doesn’t even have to be universally used, just universally available, since most households don’t have kids and won’t be blocking anyway.
Once the v-chip is in virtually all sets, then broadcasters have a blocking mechanism akin to the cable mechanism Corn-Revere was defending in Playboy. At that point, broadcasters can start arguing for the same freedom from content control cable enjoys. Though whether they will push for that freedom remains an open question.
Always standing between broadcasters and an unalloyed defense of the First Amendment was the fact that they did not want to have to bid for their spectrum at auction, which had broadcasters, understandably, invoking their special regulatory status when it served their purposes. But that’s another blog.