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Freud, the FCC & the doctrine of respondeat superior

By Ronald K.L. Collins
First Amendment scholar

PHILADELPHIA — Justin Timberlake and Janet Jackson tarted it up for the 2004 Super Bowl halftime show. Compared to their ribald routine, the resulting legal show was Victorian. When the infamous bustier-malfunction case came before the 3rd U.S. Circuit Court of Appeals recently, black robes and dark, pinstriped, buttoned-down, tailored suits were the order of the day.

There was nothing titillating as the lawyers — Robert Corn-Revere of Davis Wright Tremaine for CBS; Eric D. Miller, an assistant to the United States solicitor, for the government — presented their arguments before a three-member panel of judges in CBS Corporation, Inc. v. Federal Communications Commission (06-3575). Though the deflated ghost of Sigmund Freud may have lingered in the wings, the legal discourse was sobering, cerebral, never erotic. The exchanges between the judges and lawyers concerned such matters such as statutory interpretation, legislative history, agency regulations, administrative decisions, and (oh, my) the dreary doctrine of respondeat superior.

And yet, throughout it all, there was a subtext, call it subliminal if you will. That subtext was the First Amendment. In one way or another, every argument traced back with talismanic regularity to a free-speech principle. The spirit of James Madison, the great father-figure of the First Amendment, was everywhere.

Just the facts, please
It’s a lesson every law student learns early on: How the facts of a case are couched often determines its outcome. By that measure, Chief Judge Anthony J. Scirica and his colleagues, Judges Marjorie O. Rendell and Julio M. Fuentes, had two notably different depictions of the facts before them when the case was presented on Sept. 11 in the old ceremonial courtroom in Philadelphia.

On the one hand, the government brief identified the key facts this way: “During CBS’s broadcast of the 2004 Super Bowl halftime show, Justin Timberlake ripped off part of the bustier of fellow performer Janet Jackson, exposing her breast to tens of millions of viewers.” And this happened following a lyric sung by Timberlake: “gonna have you naked by the end of this song.”

On the other hand, CBS’ brief offered this statement of the central facts: CBS and its affiliates “broadcast a portion of the Super Bowl ... halftime show featuring Janet Jackson and Justin Timberlake in 2004. [The FCC found] CBS in violation because of an unscripted, unauthorized, and unintended long-distance shot of Ms. Jackson’s breast for nine-sixteenths of one second.”

Both sides, however, agreed on the statement of at least one salient fact: The FCC imposed a $550,000 forfeiture fine on CBS for broadcasting “indecent” material. (Under subsequent legislation, the fine would be 10 times greater if imposed today.)

Beyond that, there was little agreement on anything factual or legal. And while First Amendment and due-process issues loomed large in CBS v. FCC, the oral arguments in the case suggest that the judges will dispose of the controversy on narrow statutory grounds.

Federal statutory law (18 USC §1464) prohibits the broadcast of “any obscene, indecent, or profane” expression. Another statute (47 USC §503) allows the FCC to levy a “forfeiture penalty” against any person or corporation who “willfully or repeatedly” airs proscribed expression. (Notably, nowhere in its brief did the FCC refer to 47 USC §326, the federal anti-censorship statute, though the CBS brief duly noted it.)

So did CBS violate the law? Could it be civilly fined for nine-sixteenths of a second’s worth of breast exposure?

Where there is no will, there is no way
Federal law subjects broadcasters to civil penalties if they air “indecent” expression. Unfortunately, the statute (18 USC §1464) does not define “indecent.” But whatever indecent means, the law (47 USC §503 (b)) requires that before a broadcaster is ordered to forfeit money by way of a fine, it must first be determined that the alleged indecent programming was done “willfully.” The issue, then, is whether CBS acted willfully when it revealed a nanosecond of female flesh.

Miller, for the FCC, argued yes. After all, he claimed, Timberlake and Jackson acted willfully. And since “they were hired by CBS to perform for its broadcast audience and were subject to its exacting control, their intent is properly attributed to CBS.” This is another way of expressing what is known in legal circles as vicarious liability (aka the doctrine of respondeat superior).

As Corn-Revere saw it, there was no evidence at all that “anyone at CBS knew of, or in any way authorized the Jackson/Timberlake incident.” Moreover, his brief also argued that “the record is undisputed that Jackson and Timberlake were independent contractors for whose acts CBS cannot be vicariously liable as a matter of well-settled tort law.”

If the oral arguments in the case reveal anything, they point to a court highly skeptical of the government’s notions of vicarious liability. Consider the following excerpts from the oral arguments:

Judge Fuentes to Miller: “Can you have a respondeat superior standard that doesn’t conflict with the First Amendment scienter (knowledge) requirement?”

That rhetorical question echoed several forceful arguments in the CBS brief. There, it was argued that respect for core First Amendment principles could not countenance strict liability or a negligence theory of liability in such cases. But even that aside, the judges were skeptical about the idea of stretching such doctrines of liability to satisfy the statute’s requirement of “willful” action.

Chief Judge Scirica: “The respondeat superior doctrine doesn’t seem to fit for me.”

Judge Fuentes to Miller: “How do you justify sanctioning CBS where it had no prior knowledge that the event was going to take place and that [fact] was deliberately concealed from it?”

As the exchange continued between Miller and the court, the judges appeared to become increasingly weary of the government’s assertions.

Judge Fuentes to Miller: “I mean, it sounds like a conclusion that was made out of convenience. I mean, they really weren’t employees of CBS, were they? ... . Where else [has the FCC] reached this sweeping conclusion” regarding the alleged employee status of independent contractors?

Chief Judge Scirica to Miller: “With your theory of respondeat superior, you end up with a strict-liability regime.”

At that point Miller attempted to draw a distinction between what he saw as permissible vicarious liability and strict liability. But to no avail.

Judge Fuentes to Miller: “It seems like it’s the same thing.”

Worse still, such a position seemed counterproductive as a policy matter.

Judge Rendell to Miller: “Isn’t this ill-advised as a policy? ... As a policy matter you’re going to promote ... a hands-off approach (by broadcasters) lest [broadcasters] be held liable” for the actions of independent performers.

Judge Rendell also asked Miller how his notion of respondeat superior might apply in a hypothetical case of a painter she hired to paint her house. Did the fact that she hired a painter mean she could be held vicariously liable for anything and everything he did?

One does not have to be seasoned in the art of reading tea leaves to predict that the court is unlikely to side with the government on any its vicarious-liability arguments. Even so, Miller argued, there were yet other ways to hold CBS liable for its “willful” actions.

‘Reasonable precautions’
The FCC maintained that CBS should have known that the Timberlake/Jackson performance was likely to raise indecency issues and that it could have taken precautionary measures to prevent such problems. Against that backdrop came the first question in the case, one presented to Corn-Revere immediately following the five minutes of uninterrupted time he had with which to open his arguments. (The court granted the same privilege to Miller when he approached the lectern.)

Chief Judge Scirica: “Let me zero in on the video-delay matter. Would I be wrong to say that we are unlikely to see any of these cases in the future” since a video delay would give broadcasters the chance to delete any indecent forms of expression?

Corn-Revere: “This event was unprecedented. The video display had to be invented after the Super Bowl; it simply did not exist before.”

Chief Judge Scirica: “But it was invented pretty quickly.”

Judge Fuentes to Corn-Revere: “It shows that this incident would not occur again.”

Judge Rendell to Corn-Revere: “What if this event had been prerecorded and then shown? Would your argument be different?”

This line of discussion — virtually absent from the record of the case — reveals the special character of this case. As Corn-Revere argued, video delay had never really been used by broadcasters for indecency purposes before the 2004 Super Bowl. There were, of course, audio delays used for such purposes.

Apart from video delays, could CBS have taken other steps to prevent what the FCC argued were reasonably predictable indecent forms of expression? After all, Janet Jackson’s choreographer had said before the airing of the Super Bowl that the show would include “some shocking moments.”

Judge Fuentes to Corn-Revere: “Could it be said that you didn’t take reasonable precautions?”

Chief Judge Scirica to Corn-Revere: “Willfulness can be determined by knowledge or reckless disregard. No?”

Chief Judge Scirica to Corn-Revere: “Assuming we were to agree with your position” concerning the inapplicability of the doctrine of respondeat superior, why would we not, nonetheless, “defer to the FCC’s determination” of liability?

In other words, was there enough evidence in the record to suggest that CBS’ alleged failure to take precautionary steps was so reckless as to be synonymous with “willful” conduct sufficient to trigger liability under the federal anti-indecency laws?

Both in his oral arguments and in his brief, Corn-Revere argued to the contrary. On the factual side of the equation, he maintained:

  • The Timberlake/Jackson incident was “unscripted, unauthorized, and unintended.”
  • A CBS internal investigation confirmed that “no one at Viacom, CBS or MTV had prior knowledge of the stunt, or any notice or warning that the performance would include exposure of Jackson’s breast.”
  • In “planning and preparing the halftime show for broadcast, CBS consistently sought to ensure that it both met the expectations of the NFL and adhered to CBS’s longstanding broadcast standards.”
  • The record also indicates that CBS personnel “attended two full rehearsals of the halftime show two days before the Super Bowl” and those performances did not indicate any “possibility that nudity would occur.”

Corn-Revere’s strongest arguments, however, fell on the legal side of the equation. On that score, he argued:

  • Far from granting the FCC unbridled power to regulate broadcast indecency, the ruling in FCC v. Pacifica Foundation (1978) permitted such censorship only in cases where established rules “are enforced cautiously and limited to extreme cases.”
  • The reviewing “court must undertake an independent examination of the record, and it owes no deference to the agency’s judgment.”
  • In this case the FCC acted in clear contravention of “more than thirty years” of policy in which the agency “construed its statutory authority ... narrowly and cautiously to avoid conflict with the First Amendment.”
  • The commission “cannot summarily abandon its well-established policy of treating fleeting and/or inadvertent transmissions as non-actionable under [federal law] nor can it apply its new policy retroactively.”
  • The FCC “cannot unilaterally declare that a broadcast is ‘patently offensive’ measured against a ‘national community standard’ when it has before it no evidence of any kind to support such a conclusion.”

There was, to be sure, more — about regulatory, statutory, due-process and First Amendment law — from both sides.

The future?
At this point, a few predictions seem reasonably safe:

    Eric Miller’s able oral arguments notwithstanding, his fate in CBS Corporation, Inc. v. Federal Communications Commission in the 3rd Circuit is likely to be the same as that in the 2nd Circuit when he argued Fox Television Stations v. Federal Communications Commission – he lost.
  • The 3rd Circuit’s ruling may well track that of the 2nd Circuit, with a judgment in CBS’ favor on statutory grounds (though the First Amendment dicta in the Fox case was most welcome).
  • CBS will get its $550,000 back, minus attorneys’ fees.
  • Live Super Bowl and Grammy-like events will become creatures of the past — the danger to broadcasters is too great to risk substantial fines for a myriad of on-air possibilities.

On the legislative front, Sen. Jay Rockefeller, D-W.Va., has introduced the Protecting Children from Indecent Programming Act, which passed the Commerce Committee on July 19. Among other things, the proposed law provides that the FCC “shall maintain a policy that a single word or image may constitute indecent programming.”

Rep. Chip Pickering, R-Miss., has introduced a bill (the Protecting Children from Indecent Programming Act), which also would require the FCC to adopt a policy that a single offensive word or image would be enough to trigger indecency sanctions.

Of course, that is precisely the legal authorization currently absent from the agency’s cases against CBS and Fox. Before Congress acts any further, however, someone should alert the members of that august body to the following passage from Justice Lewis Powell’s pivotal concurrence in Pacifica: “The Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word.”

Meanwhile, the FCC would do well to step back, look at the law and its own rulings, and reconsider how, if at all, it should proceed in future cases involving charges of indecent broadcast expression. If Corn-Revere’s 3rd Circuit briefs document anything, it is that the FCC has acted with considerable caprice and an armful of arbitrariness in this matter. When it does, as the 2nd Circuit found in Fox, the rule of law becomes clay to be molded in the hands of partisans of all political stripes.

Bottom line: One need not be repressed to defend decency. Still, to cavalierly suppress liberty in its name is to turn decency into its opposite.

Ronald Collins is a scholar at the First Amendment Center in Washington, D.C. In the interests of full disclosure, it should be noted that he knows Robert Corn-Revere and has worked with him on pro bono matters, though he had no involvement in the CBS v. FCC case. Although Collins was present for these oral arguments, the eventual court transcript should be consulted for the official record of the proceedings.


2nd Circuit: FCC's policy on accidental expletives is arbitrary

Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

3rd Circuit to study 'wardrobe malfunction'
Panel to decide whether 2004 Super Bowl halftime incident was indecent or fleeting, accidental glitch that shouldn't be punished. 09.11.07

CBS attorney: Network was careful with Super Bowl halftime show
FCC lawyer tells 3rd Circuit that CBS was indifferent to risk that 'a highly sexualized performance' might cross the line. 09.11.07

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