Last week, Legal Times took a look at the Federal Communications Commission’s prospects for defending the record $550,000 indecency fine it levied on CBS for broadcasting Janet Jackson’s 2004 Super Bowl “wardrobe malfunction.”
Observers of the case – as well as amicus participants on both sides – foresaw that Justice would have to fight an uphill battle for a few reasons. The first two were that CBS hasn’t been shown to have known about the choreographed stunt in advance, and that the 9/16-second exposure of Jackson’s breast was just the sort of “fleeting” moment that the FCC has often declined to penalize in the past. But parties from both sides of the case said there was another reason that the FCC’s prognosis looked grim: The case is being heard by the U.S. Court of Appeals for the 3rd Circuit, which has regularly championed free speech issues.
During oral arguments on Tuesday, the judges did seem skeptical during their questioning of Justice Department attorney Eric Miller. Here are some of their questions and comments, as noted by Legal Times' sister publication The Legal Intelligencer:
"You can't have it both ways," Judge Marjorie Rendell told Miller. "You say they had control and then you fault them for not exerting control over these individuals."
"How do you justify sanctioning CBS in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from it?" Judge Julio Fuentes asked.
Robert Corn-Revere, who is representing CBS, seems to have had an easier go of it. Here’s the Intelligencer’s account of his response to a judge’s suggestion that a pre-game CBS memo demonstrated that the network had reason to anticipate some unknown calamity during the show:
"Corn-Revere disagreed, saying the memo was expressing only "general concerns" that related not to Jackson but to "an earlier incident where the NFL had been embarrassed by a performance by Britney Spears."
The courtroom erupted with laughter when Corn-Revere added: "of course, who hasn't been."
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