The Third Circuit has taken the unusual, but pointedly not
unprecedented step, of giving both sides in the CBS v. FCC case (Janet Jackson
Super Bowl half-time show fine) five minutes at the outset to lay out their
cases uninterrupted in oral arguments Feb. 23.
It's not unprecedented because that is how the court set up initial oral
arguments in the case involving the FCC's $550,000 fine of 20 CBS stations for
airing the reveal.
The court initially found the FCC's fleeting nudity policy to be an arbitrary
and capricious change from past policies. But the Supreme Court remanded that
decision back to the court after ruling in the Fox vs. FCC case that its
fleeting profanity policy had been sufficiently justified.
In most arguments, the judges can interrupt from the outset, and sometimes do
so within seconds of a lawyer starting to make his or her case. But in a note
Friday (Feb. 19) to the attorneys involved, the court clerk said that the 30
minutes per side would be divided up into five minutes of "uninterrupted
time" for each side followed by 25 minutes of open questioning from the
That extra time may be needed to tee up the issues, which involve not only
procedural and First Amendment arguments, but ones related to the impact of the
Supreme Court remand of the case.
The Third Circuit sought
briefs last month on what impact the Supreme Court's decision--upholding
the FCC's defense of its fleeting indecency policy--had on the Third Circuit's
original ruling that the commission had been arbitrary and capricious.