On February 1, 2004, CBS presented a live broadcast of the
National Football League’s Super Bowl XXXVIII, which included a
halftime show produced by MTV Networks. Nearly 90 million viewers
watched the Halftime Show, which began at 8:30 p.m. Eastern
Standard Time and lasted about 15 minutes. The Halftime Show
featured a performance with Janet Jackson and Justin Timberlake as
a “surprise guest” for the final minutes of the show.
Timberlake and Jackson performed his popular song “Rock Your
Body” as the show’s finale. Their performance, which involved
sexually suggestive choreography, portrayed Timberlake seeking to
dance with Jackson, and Jackson alternating between accepting and
rejecting his advances. The performance ended with Timberlake
singing, “gonna have you naked by the end of this song,” and
simultaneously tearing away part of Jackson’s bustier. CBS had
implemented a five-second audio delay to guard against the
possibility of indecent language being transmitted on air, but it
did not employ similar precautionary technology for video image. As
a result, Jackson’s bare right breast was exposed on camera for
nine-sixteenths of one second.
On September 22, 2004, the Commission issued a Notice of
Apparent Liability, finding that CBS had apparently violated
federal law and FCC rules restricting the broadcast of indecent
material. After its review, the Commission determined that CBS was
liable for a forfeiture penalty of $550,000 because its actions
were willful.
CBS filed with the FCC for a reconsideration, which was
denied. CBS then appealed the case to the federal Court of Appeals
on the grounds that the finding of willful as well as the penalty
were arbitrary and capricious and violated First Amendment rights.
Based on the Fox Television Station’s case, what do you think the
decision should be and why?
Business law