The Supreme Court has vacated the Third Circuit Court of Appeals ruling that the FCC's fine of CBS for the Janet Jackson wardrobe malfunction was arbitrary and capricious and sent it back to that court for further consideration "in light of the FCC v. Fox Television.
That was last week's decision that the Second Circuit court of appeals had been wrong to find that the FCC's defense of its pursuit of fleeting profanity on a Fox awards show was arbitrary and capricious.
Now the Supremes want the lower court to rethink its finding that the FCC's pursuit of fleeting nudity was arbitrary and capricious. CBS said Monday that it was confident the lower court would not change its mind.
In both cases, the courts could now consider the constitutional issues involved in the cases, which could ultimately land both cases in the Supreme Court, Fox for the second time.
The court's move was described as fairly standard by one veteran First Amendment attorney with experience with the court.
The FCC had sought Supreme Court review of the decision. The court essentially granted that review, which consisted of vacating the decision, which was what it needed to do before it could immediately send it back for reconsideration in light of its decision in Fox.
Both cases were decided narrowly on the grounds that the FCC had been arbitrary and capricious in reversing previous policy, in the Fox case in pursuing fleeting profanity, in the Jackson case fleeting nudity.
The Second Circuit will likely ask for new briefs on the case from the relevant parties in light of the Fox decision.
But that will take a while. Likely the next shoe to drop on the indecency front will be the FCC's indecency finding against NYPD Blue over a naked backside. That case is in the Second Circuit and was argued in February.
Responding to the Supreme Court's decision to send the Jackson decision back to the lower court, CBS said in a statement: "Today's procedural decision by the Supreme Court is not unexpected given their decision in the Fox case last week, despite the differences in the two cases.
"We are confident that in reviewing the case the Third Circuit will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS. This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material."
In July 2008, the Third Circuit Court of Appeals threw out the fine against CBS stations for their airing of the Janet Jackson Super Bowl reveal in 2004.