The right to wardrobe malfunctions

On 1st February 2004, a sporting event was made momentarily interesting by the revelation of Janet Jackson’s right breast. Literally a moment; according to the court, a mere 9/16ths of a second (a statistic no doubt tallied by a forensic breast observer.) But that brief flicker gave us a classic bit of modern terminology, courtesy of Justin Timerberlake:

I am sorry if anyone was offended by the wardrobe malfunction during the halftime performance of the Super Bowl. It was not intentional and is regrettable.

Not quite so regrettable any more. Yesterday, it produced a fascinating new judgment on the limits to limits on free expression.

In CBS v FCC, the United States 3rd Circuit Court of Appeals overturned a fine imposed on the broadcast network by the US’s broadcast regulator, the Federal Communication Commission, pursuant to this provision of the United States Code:

18 § 1464 Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

Weirdly, despite this provision apparently being drafted in the pre-TV era, American law has no difficulty with it being interpreted – by an executive body, no less – as extending to indecent broadcasts of images (but not to images sent by cable or satellite, which explains Comedy Central’s South Park.)

So, what is broadcast indecency, according to the FCC?:

[L]anguage that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.

This definition was developed in response to comedian George Carlin’s famous monologue on seven dirty words you can’t (or couldn’t) say on television, namely: shit, piss, fuck, cunt, cocksucker, motherfucker and… tits. Hmmm, one of these words is not  like the others. How are ‘tits’ (in general, or Jackson’s right one in particular) ‘sexual or excretory activities or organs’? Personally, I have my doubts about whether Jackson’s breast is an organ at all. Indeed, based on my close examination, it seems to have become one with the Borg. Anyway, half a million Americans who failed to blink at the right moment and instead looked long enough to become ‘outraged’ wrote to the FCC complaining that Jackson ruined the Superbowl. The result was the imposition of a half a million dollar fine (the result of tallying maximum fines for each of CBC’s 55 broadcasting affiliates.)

In contrast to Australian courts, US courts eschew ‘second-guessing’ decisions by executive agencies, including how they interpret and apply their own statutes. Moreover, while indecency (as opposed to obscenity) is protected free speech under the US Constitution’s First Amendment, the courts have accepted that the unique context of broadcasting justifies limitations aimed at, particularly, protecting children. So, in this situation, US law is basically similar to Charter s. 15(3):

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.

And that makes the US 3rd Circuit Court’s decision to nevertheless overturn the fine quite interesting for Victoria.

The first ground for overturning the fine was that the FCC’s application of its ‘broadcast indecency’ test to a 9/16th second broadcast was a departure – indeed, a reversal – of the FCC’s existing policy. In the aftermath of Carlin’s seven filthy words and the US Supreme Court’s upholding of a law fining broadcasters for broadcasting them, the FCC assured broadcasters  that they wouldn’t be fined for ‘fleeting’ uses of bad language during live broadcasts. However, in light of the outrage over the wardrobe malfunction, the FCC reversed that approach (first announcing the change in a case involving Bono saying “This is really really fucking brilliant” while accepting a Golden Globe. For a brilliant analysis of the US’s pre- and post-Bono ‘fuck jurisprudence’, see this article.) The United States 3rd Circuit held that this switch, while well within the FCC’s interpretative discretion, couldn’t be retrospectively applied to Superbowl incident, which predated the switch by over a month. Broadcasters need to have fair notice of the applicable rules. (However, I’ve just learned that the Bono case is going to be heard by the United States Supreme Court sometime later this year, with a decision sometime in 2009.  I’m going to have to be very careful walking home from now on. No way am I going to be run over before reading Antonin Scalia’s judgment in that case.)

The second, alternative, ground was that, while the Court found that the wardrobe malfunction was anything but (rather, it was ‘a deceitful and manipulative act’ though they didn’t say by who), it also found that CBS knew nothing about it. CBC gave evidence that, whereas Timberlake was a planned ‘surprise guest’ at the half-time show, Jackson’s breast wasn’t. Indeed, CBS had vetoed other possible guests on the grounds of concerns about their behaviour – so, I guess Sinead O’Connor and Rodney Rude now know why they weren’t invited – and carefully observed Timberlake singing the same song (‘Rock Your Body’) live without a similar incident on a five other occassions (though it isn’t clear whether he was singing solo.) CBS had implemented the (then) industry standard of a five-second audio bleeper button, but no equivalent video censorship mechanism for live broadcasts (though Jackson’s breast prompted a hurried switch to an ‘aerial shot’, though it’s unclear whether or not that helped.) The Court held that free speech regulations has a ‘scienter’ requirement – a civil version of mens rea, I think – and rejected the FCC’s argument that it was satisfied by CBS’s vicarious liability for its employees’ conduct. (Jackson and Timberlake were independent contractors.)

Despite the alien legal context, I think both of these arguments would be applicable in Victoria under the Charter. The first requirement – of fair warning of the precise (and changed) application of vague rules – follows from Charter s. 15(3)’s requirement that restrictions on free expression be ‘lawful’ and Charter s. 7(2)’s requirement that all limitations on rights be ‘under law’. The ECtHR has held that a limitation:

…cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

This requirement was recently addressed in Parliament in relation to a provision that extended an existing ban in commercial child care on ‘discipline which is unreasonable in the circumstances’ (see here for SARC’s query and here for the Minister’s response.) The second requirement – that there be no penalties for unlawful speech without some degree of responsibility for that speech – isn’t as well established in non-US law, but would seem to follow from the ‘reasonably necessary’ restrictions in Charter ss. 7(2) & 15(3). While this wouldn’t (in my view) rule out a form of strict liability for others’ speech, it would be hard to fit with an absolute liability; indeed, such a limit would chill far more than just unlawful speech.

To use the example of a broadcast in Victoria of Jackson’s breast: Of course, the Charter will have no effect on broadcasting, which is a Commonwealth matter. However, these requirements would apply equally to placing material on the internet, including (say) a live streaming of the Superbowl half-time ceremony. Anyone doing so back in 2004 may have been in breach of this provision of Victoria’s Classification Act:

58(1) A person must not use an on-line information service to publish or transmit, or make available for transmission, to a minor material unsuitable for minors of any age.

Penalty: (a) if the material is objectionable material-240 penalty units or imprisonment for 2 years; (b) in any other case-60 penalty units or imprisonment for 6 months.

where such material is defined to include:

  • ‘objectionable material’, defined as material that ‘describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult’; or
  • a film that is classified R 18+ or would, if classified, be classified R 18+

Um, perhaps now is the time to mention that Charterblog is not intended for minors; it contains… adult themes

Fortunately, I think that, in a prosecution where the Charter’s interpretation mandate applied, the key terms in the above definitions ought to be interpreted so as to cover only material that, at the time of the online broadcast, the person could have known would be deemed offensive or likely to be classified as X 18+. Moreover, both defences CBC succeeded on could also probably be made under this sub-section:

58(2) It is a defence to a prosecution for an offence against subsection (1) to prove that-

(a) the defendant- (i) did not know and could not reasonably have known that the person to whom the material was published or transmitted or made available for transmission was a minor; and (ii) had taken reasonable steps to avoid publishing or transmitting, or making available for transmission, the material to a minor; or

(b) the defendant believed on reasonable grounds that the material was not material unsuitable for minors of any age.

Subsection (a) would appear to be a reasonable ‘scienter’ requirement, probided that sub-sub-s (ii) was not interpreted in a way that chilled Victorians from doing online broadcasts of live material just because of the unrpredictable but always possible risk of a wardrobe malfunction (manipulated or otherwise.)  Subsection (b), which is simply the criminal law defence of mistake of fact, could be interpreted to include assumptions reasonably based on the then prevailing practice of the classification and prosecution authorities. Given that (unlike in the CBC case), this is a criminal provision, these results would seem to flow, not only from Charter s. 15(3), but also Charter ss. 25(1) and 27(1).

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