Third Circuit Rethinking Janet Jackson Case

While the Second Circuit Court of Appeals has clearly signaled that it still has major problems with the Federal Communications Commission's fleeting-profanity enforcement regime, the Third Circuit has quietly signaled that it may be going in another direction on indecency.

At stake is what degree of leeway broadcasters will have from the government to compete with other media not subject to similar content regulation. The Third Circuit is set to hear oral re-arguments on Feb. 23 about CBS stations' liability for broadcasting Janet Jackson's 2004 Super Bowl reveal. Just as the Second Circuit had done with the FCC's profanity ruling against Fox, the Third Circuit initially threw out the FCC's indecency finding against CBS, concluding that its fleeting-nudity enforcement represented an arbitrary and capricious change in policy. And just as the Supreme Court ruled in April 2009 that the FCC had justified its fleeting-profanity decision against Fox and sent the case back to the Second Circuit, it also kicked the Jackson case back to the Third Circuit, advising it to explore how the Fox ruling might apply.

In a sign that the Third Circuit has taken that to heart, the court issued a request for more information on a point in an FCC brief that invokes the Supreme Court's Fox ruling. In that brief, the FCC notes that the Court had found it was "entirely reasonable" for the commission to conclude that non-literal uses of "offensive words" (an f-word as an adjective) did not need to be uttered repeatedly to meet its indecency standard, which considers a single literal utterance (referring to the act of copulation) as indecent.