21 July 2008

An Incomplete Boob Job

The Third Circuit demonstrated that the FCC's "boob job" over Janet Jackson's "wardrobe malfunction" was, well, a case of the emperor's new clothes. (Do you think that's a mixed enough metaphor to start a Monday morning?) It's not nearly as mixed as the FCC's own rationale, as the Third Circuit's opinion reversing the FCC's fine shows.

[W]e find the Commission's unsubstantiated contentions in this regard contradict the lengthy history of the Commission’s restrained enforcement policy. While "an agency’s interpretation of its own precedent is entitled to deference," deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to Golden Globes, this was the policy in effect when the incident with Jackson and Timberlake occurred.

CBS Corp. v. FCC, No. 06–3575 (3d Cir. 21 Jul 2008), slip op. at 27–28 (citation omitted).

Because the Commission fails to acknowledge that it has changed its policy on fleeting material, it is unable to comply with the requirement under State Farm that an agency supply a reasoned explanation for its departure from prior policy. Consequentially, the FCC's new policy of including fleeting images within the scope of actionable indecency is arbitrary and capricious under State Farm and the Administrative Procedure Act, and therefore invalid as applied to CBS.

Id., slip op. at 48–49 (excrutiatingly long parenthetical citations omitted). However, the Third Circuit — in a misguided attempt to defer to "agency process" — did not outright reject the FCC's position, but remanded it for further consideration.

Aside: This contretemps results from a pure attempt at retrospective censorship that was probably driven as much by racial politics as by anything else (white boy/older black woman... but never noted as such in the judicial or administrative opinions). Administrative law scholars will point out that this is a review of an agency action for whether it was arbitrary and capricious, and cite the same extremely narrow standard of review as did the court (see slip op. at 11–13). This, however, actually points the opposite way; by definition an unconstitutional act by an agency falls within arbitrary and capricious, because any statutory authority purporting to support an unconstitutional action is itself void... and an agency action without statutory authority is inherently arbitrary and capricious. Judge Rendell's partial dissent (quoted below) makes this excrutiatingly clear. So does actually reading the record in Chevron, even if the rhetoric of the Supreme Court's decision never goes that far.1

Unfortunately, this decision is not a complete rejection of the FCC's position. Probably in a misguided effort to avoid accusations of "judicial activism," the majority on the panel nonetheless remands the case on a technical ground: That the FCC deserves another chance to refine its definition of "willful" (only "willful" broadcast of indecency is at issue under the enabling statute). CBS, slip op. at 84–97. It is worth quoting the entire partial dissent to refute this position. Don't worry, it's short.

I wholeheartedly agree with the majority’s cogent reasoning and conclusion that the FCC's imposition of a fine against CBS cannot stand, because it acted arbitrarily and capriciously in doing so.

However, I disagree with our opining, in dicta, regarding the various possible levels of scienter arguably required under § 503(b)(1)(B) or (D), or 18 U.S.C. § 1464, or the Constitution. For one thing, this is dicta. For another, the FCC has conceded that the level of scienter required in order to warrant a fine is "willful," and has itself urged that the definition of "willful" is as set forth in 47 U.S.C. § 312(f)(i), meaning "conscious and deliberate commission or omission of such act."

Were it necessary to venture more deeply into the issue of scienter, which I submit it is not, we should point out that the real dispute between the parties is as to what must have been "willful." The FCC adopted the position that the conscious and deliberate act was simply the act of broadcasting, while the opposing (and, I believe, better) view is that the requisite conscious and deliberate act is the act of broadcasting the indecent material at issue. Clearly, CBS's conduct here fails the latter test.

I also take issue with the majority’s conclusion that there is a need to remand this case. We have held that the instant fine was improperly imposed. There are no further proceedings necessary. Should the FCC wish to explain its change in policy, it can do so in the next case or issue a declaratory ruling. It serves no purpose to do so in the context of this litigation. Nothing is to be gained, and CBS should not be forced to be a party to any such remand, with its attendant time and expense. Accordingly, I respectfully disagree with the disposition of this appeal and would reverse the order imposing forfeiture, without remanding the case.

Id., slip op. at (Rendell, J., partially dissenting) (footnotes and citations omitted).

   Or, to put it more graphically yet, consider this notorious bit of "indecency"... which was voluntarily reshown repeatedly during the broadcast and got not one peep from the FCC.

One final note: I am confused as to why it took ten months after oral argument in September 2007 to reach this obvious result. I can only infer that there were a lot of drafts within the panel to reach appropriately "nuanced" language on an issue that requires little nuance. This is not an issue that requires careful balancing of powers between the executive and judicial branches, or indeed of much of anything else... despite the overstated and overblown rhetoric of Pacific Foundation and Miller.

  1. Of course, there are two deeper problems with invoking "deference to agencies" by mere citation to Chevron. One is what I hint at here: The actual matter at issue in Chevron was a highly technical matter beyond the competency of any legislature, and thus appropriate for deference to an agency. I, for one, do not believe that restrictions on speech implicating the First Amendment fall within that type of matter. Second, Chevron is more often quoted for the concurring opinion by Justice Powell, and resulted from a fragmented court trying to resolve a specific matter. Applying that kind of misbegotten nonconcensus as binding regardless of later factual context resembles "judicial activism" far more than most "results-oriented" decisions.