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January 01, 2007


scott pilutik

Thanks for the link to the video Liz. The Second Circuit panel did indeed seem to buy Fox's arguments; and Fox's lawyer, Carter Phillips did an amazing job of presenting the overarching issue, which is that the FCC's recent rulings cannot be reconciled, appear arbitrary and capricious, and if they are not somehow reined in by the judiciary, will just invent a new arbitrary standard next year or the year after. Looking at past opinions of the judges on the panel, each has a decent record on First Amendment issues. Politically, Pooler and Leval are Clinton appointees, and Hall is a recent Bush appointee--but Hall recently wrote an opinion finding that a city noise ordinance used to prohibit a street preacher's speech was not narrowly tailored and thus unconstitutional. Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006). This same "overbroad" rationale is what we're hoping wins out here.

I've attended oral arguments in the Second Circuit on prior occasions and never thought I'd hear its rarified air pierced with as many instances of "fuck" and "shit". The FCC's lawyer was the only one who didn't use the terms, while Leval appeared to enjoy repeating them.

I'm not certain as to what the precise issue is in CBS's Janet Jackson complaint, but I would assume it would relate to the size of the fine (as opposed to the mere imposition), which, iirc, was as large as it was based on the FCC's agency theory--that Timberlake and Jackson were employees of CBS for the purpose of the half-time show, and so their intent and knowledge imputes to CBS.

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