Digital Media and Data Privacy Law Blog

Earlier this summer, the U.S. Supreme Court released during the last week of its 2011 term its long-awaited opinion in the broadcast indecency cases FCC v. Fox Television Stations, Inc. and FCC v. ABC, Inc. This decision represents an important victory for broadcasters, but, as explained below, leaves several important questions unresolved.

Background

The Fox case arose from the 2002 and 2003 Billboard Music Awards shows, in which Cher used the F-word during the live broadcast of the 2002 show and Nicole Richie used both the F-word and the S-word during the 2003 show. Its ... Read More 

Broadcasting & Cable is reporting that the Third Circuit has scheduled oral argument in the Janet Jackson "wardrobe malfunction" case for February 23, 2010, at 1:30 p.m. 

The case involves review of the FCC's determination that the Super Bowl half-time broadcast of less than one second of Janet Jackson's bare breast was actionably indecent.  In July 2008, the Third Circuit vacated and remanded the FCC's decision, finding that the Commission's action was arbitrary and capricious because the material at issue was "fleeting" and, at the time of the broadcast, the FCC's policy was ... Read More 

The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm. 

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent.  We previously reported about the Supreme Court's decision in the Fox case here. 

Although the Second Circuit previously ruled that the ... Read More 

In a 5-4 decision released April 28, 2009, the United States Supreme Court has upheld the FCC’s decision to find “fleeting expletives” actionably indecent in certain circumstances.  The immediate import of the decision is that even a single occurrence of the F-word or S-word outside of the safe harbor (10:00 pm to 6:00 am) may subject a television or radio station to fines up to $325,000.  We previously reported on the oral argument in this case when it occurred back in November.

The case, FCC v. Fox Television Stations, Inc., involved the single use of the F-word by Cher during the ... Read More 

The FCC this week filed a petition with the U.S. Supreme Court seeking review of a federal appellate decision overturning $550,000 in fines levied by the FCC over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.  The FCC fined CBS that amount -- representing the then-prevailing statutory maximum of $27,500 per CBS-owned station that aired the Super Bowl -- on the grounds that the split-second exposure of Janet Jackson's right breast (for 9/16 of a second) at the end of her performance was indecent.

On July 21, 2008, the Third Circuit ... Read More 

The U.S. Supreme Court today set aside the broadcast industry's victory in the Janet Jackson indecency case.  In a two-sentence order (see case number 08-653), the Supreme Court granted the FCC's petition for writ of certiorari (we previously reported on the filing of the petition by the FCC), vacated the Third Circuit's decision that CBS owned and operated stations were not liable for the broadcast of Janet Jackson's infamous "wardrobe malfunction," and remanded the case back to the Third Circuit for further consideration in light of last week's Supreme Court decision in FCC ... Read More 

The United States Supreme Court heard oral argument in FCC v. Fox Broadcasting on Election Day 2008.  As authors of an amicus curiae brief in the case, three Brooks Pierce correspondents -- Mark Prak, David Kushner, and Julia Ambrose -- made an old-fashioned road trip to Washington to hear the argument.  In an ironic twist, our sojourn to the Nation’s capital was itself seasoned with some “fleeting” expletives, as we encountered unprecedented and extraordinarily frustrating Election Eve traffic that clogged ingress to the District for nearly an hour.  As our car inched across ... Read More