we're giving both counsel five minutes of uninterrupted argument and then we'll jump in thousand and four super bowl halftime show you speak up just a little bit with the microphone yes i'll start over the f c c is decision to find c b s broadcasting five hundred fifty thousand dollars for the nine sixteenth's of a second that ended the two thousand  super bowl halftime show was wrong for at least four reasons first the decision is invalid because the f c c imposed liability despite the fact that c b s neither planned nor approved the split second incident quite to the contrary the undisputed record in this case shows that c b s had no advance knowledge that the stunt concocted last minute by janet jackson and justin timberlake would occur unable to come up with evidence of network complicity the f c c has attempted to minimize its burden of proof or to dispense with it altogether by manipulating applicable legal standards it applies an inappropriate statutory standard of willfulness and incorrectly relies on the common law agency doctrine of responding out superior however these arguments are foreclosed by basic principles of statutory construction including the requirement that the law must be interpreted to avoid an unconstitutional result such as eliminating the need to show c enter in addition the supreme court has what has held that respond cannot be used to support punitive sanctions where as here there has been a good faith attempt to comply with federal mandates in this case the record shows that c b s selected performers specifically to minimize the possibility of unforseen events it carefully reviewed the script and subjected the broadcast to what was then the industry standard five second delay when some actions when these actions proved insufficient to prevent the unexpected event c b s immediately apologized to its audience but this reflected the fact that c b s did not meet its own editorial standards and does not constitute an acknowledgement that the broadcast should be legally sanctioned by the f tolerance approach applied in this case is invalid and has had a significant chilling effect on the broadcast industry particularly with respect to life programming second the f c c is decision should be reversed for the same reasons as were articulated recently by the second circuit in fox television stations versus the f c c here the commission has not even attempted to justify abandoning the restraint indecency enforcement policy that the agency articulated and applied for almost thirty years when the f c c and the courts first articulated indecency standard in the mid one nine hundred seventy s they confronted the paradox the legal standard they devised was less precise for the ten than the test for obscenity even though indecent speech unlike of sanity is fully protected by the first amendment so the commission and the court created two safeguards as part of the restraint in foresman policy as an attempt to establish insofar as possible bright lines and to minimize any chilling effect of applying the indecency rules first they held that the f c c could not impose a complete ban on indecent speech despite the categorical language of eighteen u s c section fourteen sixty four instead they impose the so called safe harbor of time cha and secondly they applied a consistent policy whereby unintended inadvertent or fleeting transmissions were considered to be not actionable in this case the commission abandon the second of these two bright light tests without any explanation whatsoever at a minimum the decision violates the administrative procedure act and it also undermines the first amendment balance that was articulated in pacifica and subsequent cases third the decision violates due process because the c applied its fundamental change in policy retroactively to c b s in every other case where the f c c has altered its any decency enforcement policy it has recognized that cannot at the same time impose a forfeiture its decision to do so here cannot be reconciled with those prior decisions and violates basic principles of due process and fourth the f c c has application of its indecency policy to the super bowl broadcast was arbitrary and capricious the f c c purports to base its findings in indecency cases are contemporary community standards for the broadcast industry and yet readily admits it has absolutely no measure and does not attempt to measure what those are by way of proxy the f c c has now three can textual factors that it purports to use to measure whether a particular broadcast is painfully offensive but the f c c is ability to manipulate those factors and shows them to be entirely malleable and therefore arbitrary it's reasoning in this case ignores the critical contextual factors that the supreme court and the commission considered an f c c versus pacifica foundation the let's interrupt you at this point there are many interesting and difficult issues involving administrative and constitutional law in this case but let me and zero in for a moment on the video delay and would i be incorrect in saying that these kinds of events are going to be unlikely in the future that is we're not going to see too many of these kinds of cases with the technology now that can be implemented with video delay and then you might talk why we're on that topic you might talk a little bit about the what the record shows about the availability of video delay at the time of the broadcast yes judge circuit if i could take the second part of the honest and first time the record shows the video delay simply did not exist it didn't exist for the simple fact that this event was unprecedented in history broadcast television that's why there had been a five second audiovisual a because the concern has always been about language there had never been a performer going off strip script and having this kind of incident and as you know it's your position that the warning signs that existed were focused on on words and not on images that well i think the warning signs that the commission has tried to point to in the decisions below  exaggerated and i can talk about those specifically but the video delay had to be invented after the super bowl it simply did not exist before because of that and that's been a pretty quickly after that was within a week that's true it wasn't a technical complex thing necessarily but it did require a lot of attention is not an easy thing to do programatic lee in a given show but it simply had never been done before and it was invented after the super bowl  well that's right it does mean that in shows of this type video delays are more routinely used although there are programs where there wouldn't be a like in this case a five minute delay like news programs or something like this could happen where you would not have a video delay that you could rely on nevertheless the standard that the f c c has articulated in this case and applied elsewhere would suggest that even those shows are in jeopardy any time there is a live presentation c says that we should have used a video delay in advance even though there had never been occurring it's like this and even though the video delay did not exist it's purely twenty twenty hindsight so to apply that standard now to a finding of liability for s then before these events occurred i think it's unreasonable it's like ok just one thing and i correct that the record does not say anything about the availability of video delay at the time of the broadcast  is it doesn't it doesn't say that the technology was available but no no nothing in the record says it was in fact in c b s his response to the f c c is letter of inquiry c b s explains that there had not been a video delay before and that it was developed after the super bowl for the grammy awards ceremony you say developed are you saying there was no technology and the record shows there was no technology or is the record silent as to the availability there are it is explained in the response to the f c c that no video to way had ever been developed before and that it had to be developed for the grammy awards and so who had the burden of showing that it was available well it's more than just developing whether or not it's available it's whether or not the level of micromanagement that the f c c is trying to impose in this case is supportable under the law that's a different question but with respect to its availability at the time  that your position that the f c c had the burden let's the f c c that's bringing the case and has the burden to show that c b s has violated the indecency standard so certainly it would be the commission's burden to show that there was a video delay that existed and that it says that broadcasters need to make reasonable efforts to determine what's going to be on but they don't have to settle every conceivable ambiguity and answer every question and in fact the able broadcasting case dealt with knowing what was on sound recordings before they were put on the radio and the d c circuit in that case went on to say that the standard would be different for a live broadcast when you could not expect the broadcaster to reasonably anticipate what might happen in the live setting what if this had been previous corded and  argument be different i think it would be different simply because that's one of the factors that the supreme court and the f c c focused on in pacifica case there as i was about to mention earlier the critical contextual factors that the court identified in that the c applied for thirty years or three they looked at whether or not the image or the program was prerecorded whether or not it contained offensive language that was broadcast over and over again and whether or not it was intentional those are the three critical factors that the court was concerned about in pacifica and that the f c c has ignored in this case with the fines be justified in that event it would be a finer distinction in that if you would have a factor that doesn't exist in that in that case i don't know if i can answer the question if it was known in advance what was going to happen but the fact is here the f c c specifically said in its orders that it does not matter that c b s didn't know it was going to happen they said it does not matter whether or not the network intended to broadcast nudity doesn't matter if we statutory section two apply here is section five zero five zero three b one d since that specifies a violation of section fourteen sixty four as a matter of fact for purposes of the forfeiture statute subsection d relates to those sections of the communications act that deal with regulating content the f c c tries to adopt a lower standard by relying on section five zero three b one b which relies to general provisions of the communications act and general provisions of the f c c rules the more specific  statutory provision is the one that controls based on just normal rules of statutory construction and in addition that have a knowing knowingly standard as compared to willfully standard what it would would be see enter where  mean i think the case law does make it clear what that where you're regulating expressive activity that there is a high standard that has to be either reckless disregard or actual knowledge that the event was what was going to take place no i think the record is quite clear here that c b s did take reasonable precautions it not only excluded certain performers that it thought might not adhere to broadcast standards selected these performers because it reasonably believe they did apply the five second delay there was there was no reason to believe that c b s didn't apply the reasonable standards that any broadcaster would for a live broadcast you have a reasonable precaution standard that does not conflict with the first amendment scienter standard the f c c standard for what a broadcaster needs to have done i think here where the record does show that there was absolutely no knowledge that the f c c also failed to meet a first amendment  let's see if we can define the standard i gather what you're saying is that wilfulness can be met he thereby knowledge or by reckless conduct is that correct i think that is correct all right so so then the applet if you would if you acted with either gross negligence or with recklessness you could be held liable i think that's the standard that's recognized even in defamation but i think here where the record has shown that c b s had no knowledge and no intent that that is the more appropriate standard but it has been wrecked we make of statements appendix one sixty eight where someone is saying i don't want to go so far that i have a dozen of my owners complaining to me about what janet jackson was wearing or not wearing on stage at half time i wouldn't know john jackson she walked in my office but i do know etc etc there was some contemplation intentional problems was there not that memo was that the n f l wanted to make sure that c b s understood that it was to be careful the comment about janet jackson weren't expressing a concern about janet jackson the memo itself says i wouldn't know janet jackson if she walked in the room it wasn't warning record shows that c b s considered a number of other performers and specifically rejected them and in fact it went to the head of the network and c b s where certain performers were specifically told were specifically not selected for the super bowl because there was concern that they might not hear to broadcast after they couldn't be sure but they might not and that's one of the reasons why janet jackson was selected it's also the follow up exchanges in sort of the planning process also show the thinking of the network in instituting the d there was a debate back and forth about whether there was a need to and ultimately the network decided to take the prudent course and adopt a delay because that was something that they felt was necessary to make sure that they had here to standard so the respond theory in this case doesn't seem to me to to fit accurately it's helpful but i think you make a very good argument that these performers who are independent contractors and hold you to some degree of control some degree of responsibility and as i understand it you're satisfied to being held at least to a reckless disregard standard of culpability in my standing and correct what i think is a constitutional minimum it would have to be reckless disregard under the bo standard but and under new york times for sullivan but i think here where you have a record of shows that c b s had absolutely no knowledge and given the supreme court decisions in cases like smith versus california given this context i think it would be more appropriate to look for actual knowledge but again i think the minimum standard would be reckless disregard could you comment on the fact that this is a civil statute which incorporates a willingness requirement rather than a criminal statute which more often requires the prior knowledge than we have the the f trying to make a great deal of the fact that this is a civil sanction but of course pacifica which they rely on doesn't say that there is a difference in the sea enter requirement because of a civil versus criminal penalty it simply says that section four hundred sixty four can be enforced either through criminal means or civil means but there are other cases that speak specifically to that point in fact the supreme court decision in manual enterprise's versus de res that very question with respect to regulations of the post office department about determining whether or not matter was non mailable for being indecent and in that case the supreme court specifically said that it makes no difference whether or not you're talking about a civil sanction or a criminal sanction you would still have to constitutionally have a standard of c enter so that you could impose liability only under that will that sort of be willful and this is interpreted by the f c c seems to present a very low bar you think you'd be able to meet the bar well i think the willful standard is no standard at all as the c has articulated it and for that reason it's inappropriate but even if it were to apply i think the actions that c b s took on this record show that it was not being consciously indifferent to a possible risk what the f c c has tried to impose is essential which puts the burden on the f c c to show why it couldn't have presented the unforeseen here i just don't think that the f c c has justified that lower burden or that c b s failed to meet it yes you see wants to draw a distinction between words and images in terms of the need for a rationale for changing the policy is there a distinction between the type of words that are person versus images there's no distinction  c decision that they can name in fact that's why the f c c had to reach out to third circuit cases and try to quote dictum from cases that suggested that was true those cases that we shouldn't in our brief are inappropriate and don't reach the conclusions that the f c c says that they do in fact the f c c has decisions have never drawn a distinction between words and images they've treated all potential indecency violations as the same under the restraint policy in fact the very first f c c decision that was  restraint policy that was articulated in pacifica the same is true in cases that happened after that in one thousand he was there a policy change and young broadcasting with respect to fleeting images of nudity no there wasn't as a matter of fact the f c c did not try  explain that as any kind of policy change it simply tried to say that this was its understanding of how it could proceed in fact that case is really quite different factually because the f c c tried to frame that as a case showing intent where a broadcaster consciously brought in nude performers into a newscast and then go to them into doing something that it thought was indecent what's interesting about young broadcasting is that the licensee in that case filed a detailed opposition to the commission's notice of apparent liability and this has been sitting at the commission for over two and a half years with no answer that makes this case very analogous to the golden globes case where the f c c actually did announce a policy change in golden globes and then refused to act on petitions for reconsideration and yet nevertheless applied that policy in subsequent cases those were the cases that the second circuit reversed in the fox television station case and the same result would be justified here is that mean that the prosecution of this case was an extension of existing policy or the this represents a brand new a c c policy the commission has been ambiguous on that i think that it's the representation manifestation of a new policy the f c c tries to explain that it's of continuation of a previous policy and yet is never able to fully explain those previous f c c cases that have dismissed complaints based on fleeting nudity did they say it's the same policy or did they draw the distinction that i mentioned before between oh this is images not words so therefore it is different it's not a change from our fleeting words policy the commission draws that distinction at pages twenty five and twenty six of its brief but it has never shown an f c c decision in the past that has drawn that distinction s sorry if we agree with you on that point then i guess your argument is they provided no reason explanation for the change so broadcasters have not been put on notice that the fleeting images policy has been changed that's right and and for that reason the reasoning and fox television stations would apply directly to the situation here that's at a minimum it also raises for the reasons that we explain that our brief constitutional tensions with how the f c c is applying the law if we were to agree with you on that new policy point does that mean we can stop there or do we have to address them well certainly it could be remanded to the commission to determine whether or not a new policy is justified but with one important would win on that point along with you yes yes that's true and if it were to be remanded on that basis it would be important to note that the f c c would not have the authority to impose a forfeiture both because it would be retroactive to whatever new as a matter of equity at least that's that was the initial concept that would be an equitable imposed that we now have to change have to explain away how somehow the equities had shifted such that now it could be an i would take issue in two ways first i think given the nature of the display that it's not actionable indecent even if as a matter of substance you might consider it to be indecent because of the nature of the display it's not actionable but secondly i think as well the f c c is articulation and application of its contents to a factors is arbitrary and incorrect and for that reason i would also take issue with it which were the factors that anytime you have three factors and you have to weigh in balance and that's getting a little mushy do you have a better way for the f c c to proceed i mean they do have a mandate to regulate well that's true but the way in which the f c c has given weight to those factors gives a whole new meaning to the they find it in their province to disregard certain factors to recalibrate others not even between cases but even in the same case in this case for example they reevaluated how they view the three factors at least twice on each of the factors  think there is a better way to do that and they're based on the contextual factors that the supreme court focused on in pacifica which i mentioned earlier whether or not something is prerecorded whether or not it was intentionally broadcast and whether or not it's repeated those were the contextual factors that the supreme court was concerned with these three factors were ones that the f c c concocted in a policy statement in two thousand and one that has never been approved by the courts well i guess we can argue all day as to whether the one sixteenth or the second here was as graphic or explicit you have to define those terms but i'm more concerned about the third factor which talks about community standards and the way in which you would propose that the f c c arrives at those community standards  mean is this a matter of taking polls how how is the f c c supposed to do that as as far as your well for starters the f c c could at least trying to do some evidence of what the community standards are here they've  obligation to do that they think that the five commissioners just know what the community standards are and yet as the brief filed by the meek the former f c c official said this is not something within the province of agency expertise and in any event the f c c has not demonstrated any expertise in house are going to go about doing that i think the best guidance we have is from the d c circuit decision and illinois citizens committee for broadcasting where in the supplemental opinion of judge leventhal he said that however hard it may be for the f c c to determine what a national community standard is they at least have to make an attempt to discern what a community what the national community would be and to try and find some level consensus that would entail providing some evidence of what the national community considers to be offensive rather than just the sensibilities of the five commissioners these proceedings don't lend themselves to evidentiary matters do they an evidentiary findings i mean what happened here was c b s proffered what seventy affidavits or interviews and it made its own record but there's really there's really no hearings where evidence can be could have been here i mean that certainly the f c c has that option but that's not what they did and that's not what i'm suggesting that what i am saying is that we're evidence is provided that is separate from just what the commissioners are thinking that the f c c has an obligation to consider it anyway and make that part of  decision rather than simply saying we don't need evidence although we make those types of decisions all the time in looking at for instance a qualified immunity what a reasonable police officer would view as excessive force and what knowledge of the law reasonable police officer would hav people have to make decisions based upon general commonsense or you know understanding of society and why i can are the commissioners not able to to do that they've been appointed for that purpose in order to make some determinations why can't they be making that on a on a commonsense common sense basis just as other f c c decisions require some basis in evidence i think th should be reviewed as an original matter by this court whether or not the f c c had evidence here are complaints that are made to them helpful they're hopeful in indicating what the complaints have been but they don't tell you whether or not something is something you come from the same and same groups or same individuals as well as the record shows i mean the vast majority of complaints here were simply engineers by activist groups and in fact many of the complaints in the record were duped as twenty percent of the complaints were duplicate some complaints were duplicated in the record thirty seven times in fact the f c c said repeatedly on its website in its annual tallies of complaints that a complaint and the fact that a complaint has been filed is not to be taken as an indication that the law has been violated and so the complaint counts really don't tell you what the community says and in fact the f c c has said in this case that it didn't intend for the complaints to be taken as an indication of community standard you know prior to this case are you aware that the f c c has used the responding and superior theory of liability it has used that in certain of its decision but never in a case involving  this kind of content control on the indecency cases you know certain of its cases involving technical rules or where station employees or control of operations standards are no i don't think it is as i think indicated in the bows decision the commission's decision should be were reviewed thoroughly by this court both the factual records in the findings of law to determine whether or not it's consistent with the first amendment this case articulated that standard and us versus various articles of merchandise schedule number two eighty seven where it said that it's important for the reviewing court to make its own determination to ensure that the first amendment breast to the largest television audience of any broadcast that year the f c c reasonably determined that that broadcast violated the longstanding federal probation on the broadcast of indecent material at times of the day when children are likely to be in the viewing audience commission also reasonably determined that c b s had acted willfully thus making it liable for monetary forfeiture and like first to address the question of whether the broadcast was indecent the f c c analyzed that using its longstanding three factor test which looks at whether the material was graphic or explicit whether it was do all the pon the repeated and whether it was presented in a pandering or titillating manner and whether it was shocking the f c c has explained repeatedly that all of those factors are to be weighed and balanced against each other and no single factor is dispositive here the material was graphic and explicit in the commission found its factual matter that it was clear and recognizable to the average viewer that the performers were at the center of the stage they were the headline performers mr timberlake six hand motion drew the viewer's attention and if there were any doubt mr timberlake provided an explanatory narrative of exactly what he was doing he said going to get you naked by the end of the song and that's what he did  the commission acknowledged that the material was fleeting but it found that that factor was outweighed by the graphic and explicit nature of it and by the shock value of it and that's illustrated by the the manner in which it was presented taking  contained no warnings that it might have content that was unsuitable for children and was viewed by an average of one hundred million people during the broadcast and it's also confirmed by the statement of viacom's president that he was shocked and appalled by the broadcast and we're not relying on that as a legal concession i think it's one piece of evidence that indeed this was clearly something that was shocking now the principle response that c b s makes a of this is to say that there was somehow only an exception under prior f c c policy that fleeting nudity could not be actually actionably indecent it's no accident that they haven't identified a single case in which the f c c actually subbed on because there isn't one and it flies in the face of the language that the f c c used in the two thousand and one industry guidance in explaining how the indecency test works it said no single factor is generally dispositive  it rather all three factors have to be weighed against each other and even in the context of spoken references and words which as we explained in our brief are not properly analogized to nudity but even in that context there was an exception for fleeting expletives but the commission also said that even relatively fleeting spoken references maybe found indecent if other factors contribute to a finding of pain defensiveness the idea of an exception for all fleeting nudity it also flies in the face of common sense because the rule that there are essentially saying had existed would be one under which broadcasters were free to broadcast any image at any time of day no matter how graphic all nothing in the order gives any indication of whether petitioner or the complainant in that case was even correct that there was news and there is certainly nothing in the order that says well there was nudity but it was fleeting and therefore we're going to find it not indecent the commission also reasonably determined that the violation in this case was willful and there are alternative grounds for that determination of the first as respondents period or the commission found that the performance performers in this case acted willfully and c b s seems to concede that that's correct when we get into the definition of willful on where we're very interested in what you have to say about that with respect to your to the fact you claim that there was no case that in effect validated the fleeting images or fleeting words of policy but as i understand it the argument of c b s is that for nearly thirty years the f c c followed a practice that was demonstrated in the orders that the issue the declan nations to go ahead that in effect put everyone on notice that there was such a policy is that incorrect it is incorrect simply because there weren't they haven't identified any cases that involved fleeting nudity so there was nothing that the commission could have done to establish such a practice so it's not a surprise by the way that there has been a dearth of cases involving nudity because i think there's been a recognition by broadcasters that  that's a material that's beyond the pale for broadcast television but the policy was regarding fleeting words that these were not sanctionable is that not correct that was that there was a policy with respect to cases relying solely on the use of expletives or there was not a policy that all short utterances were exempt and the evidence of that is progress in one thousand of the two thousand and one and three guidance which gives three examples of spoken statements that were found to be indecent and they're all just a sentence or  two even though they were very short there were factors about those statements that made them highly offensive and therefore they were found indecent so i think that is sort of the decisive refutation of the claim even if one thinks that the words cases in the supported by common sense i mean if we person is walking down the street and hear someone swearing you might be annoyed or perhaps offended if someone exposes himself to you or i think the reaction would be quite different even if the exposure is very includes graphic and explicit it seems that the objection is as to the image that is conjured up with a word and in fact some of the some of the words that are objectionable have been found to relate to specific items that do come to mind as a picture how are words that conjure up images different from the im a matter of ordinary understanding the distinction between the image itself and the word that describes the image and him and that's what the commission recognised on this your decision that you treated images differently from words  the fleeting indecency standard that our position is that the only fleeting exception that ever existed was with respect to fleeting expletives it was not an exception with respect to all fleeting spoken utterances and the commission did not have occasion to address the relationship between reading words and fleeting images  but certainly there is nothing that the commission ever said that suggests that there should be an exception for fleeting images and on the contrary the commission's language in the two thousand and one industry guidance about the importance of the fulton textual analysis the importance of balancing all three factors in the fact that one factor is not dispositive is contrary to that if petitioners view of the law were correct that two thousand and one policy statement should have been quite different instead of saying there are three factors to be balanced against each other it should have said there is a threshold requirement that the material not be fleeting and then there are some other factors that's the opposite of what it says it will consider in the original pacifica order the f c c acknowledge that in some cases public events likely to produce offensive speech or cover to lie and there is no opportunity for journalistic editing whether it's images or words isn't that the same problem we have here that there was no opportunity to edit what occurred no your honor that what the commission there was talking about was it was published every night as in the language you just quoted public events or there's no opportunity for journalistic editing and stalking about the news coverage of some li organized it it wasn't like they were going out and filming something that existed independently of them which is the sort of raises the sorts of concerns about journalism that the commission is getting on in that in the order that was there was an event that was  deliberately concealed from c b s and m t v the how how do you justify sanctioning c b s in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from well c b s had knowledge of the event in the sense that the performers were part of c b s for purposes of this event the co about that well that you can't isolate just a one factor of control or the right to control as making someone an employee i mean if i have a painter come to the house and he he paints the house and i say i wanted painted blue and i want to paint it here and i'm controlling what he does he's my employee i mean there are probably lot more aspects to it than that and that's that is certainly true although as this court said in carthy there are many cases  negligent employer and not exercise that right appropriately but that doesn't mean that one is not an employer and here you know some of the factors that distinguish i think the the painting example or the painter would most likely bring his own tools and his own paint and brushes and so forth here c b s provided the site was in charge of costume of the house i mean the set in the house are analogous but he brings his paintbrush and janet jackson you know bro costume and you know her boots and whatever else she had it was a custom that was reviewed by c b s and c b s have the right to make changes to the costume and where else i judge sirica asked before where else have you made reach this sweeping conclusion as to employee status of performers who happen to be on a show or presented as part of a show i'm not aware of a case in which the commission has made findings about the employee status of performers but certainly there are many cases in which the commission has relied on to respond via courier theory of liability and indeed on content or an operation on you end up with virtually a strict liability regime and you even say in your brief that even if they're independent contractors there's a nine down legal duty here that c b s had so that whatever happened they're responsible  that you're respective of whether or not they acted reasonably or whether it was reasonably foreseen well that's right no we certainly don't concede that they did they did actually understand that but that is correct and it's not strict liability it's vicarious liability and that is entirely consistent with the first moment and it seems like he's the same thing once once you have a when she determined that the performer is an employee of the network you're liable  that's that's right and the and the reason that that's right is the supreme court's decision and cantrell against versity publishing company which we cited page thirty eight of our brief and that's that was a false light invasion of privacy action against a newspaper for printing an article about the plaintiff that contained some inaccuracies and the reporter had actual knowledge of the united states so as to satisfy your times again sullivan but the court of appeals set aside a judgement against the newspaper his employer because it's of the paper didn't but the article was inaccurate and the supreme court reversed that and it said that it was applying quote traditional doctrines of respondents curry or and that that was enough to hold the newspaper liable for the employees knowledge no nobody else at the paper knew that the article was false and so i think what that shows is that there is no first amendment problem with vicarious liability the first amendment tells us under what circumstances can speech be subject to sanction but once we know that speech can be sanctioned then the question of where the sanction falls with or it's the agent or the principle that's governed by common or principles of agency in the first amendment doesn't speak to that but isn't isn't this ill advised as a policy because now you're going to have broadcasters not exerting control and maintaining a distance from performers and not trying to control their content lest they be held to be vicariously liable so as a policy matter you're going to promote the the non regulation and non control of performers of this kind i mean in the next iteration of this c b s is going to have a total hands off approach to these performers  they be held liable for what they do but i think there are two answers to your honor the first is that as we explained in our brief there is a non dollar bill duty that the licensee has to that cannot be discharged simply by changing the relationship that it has with the person that it puts on the here so even if it calls them an independent contractor who was essentially what the rule that c b s proposes it can't avoid all liability or to be able cannot be imputed to the commission cannot be imputed to c b s rather so the first amendment doesn't doesn't apply in this context i think the first amendment applies to figuring out when speech can be subject to  i think some of those cases are in the criminal context for love and it's response very or it isn't available in the criminal context but if i could just come back to the policy issue that you're raising children doll i think once once under control that the first amendment is not involved in determining what the attribution will be then there is a policy judgment that needs to be made and it's a judgment between on the one hand saying that to the extent that there is an ability to control it we want to use respond to its very or to create an incentive for the employer to exercise that ability to control or on the other hand we could say as the supreme court's of some of the title seven cases cited by  this context in the context of the interpretation of the communications act that policy judgment is committed to the commission in the first instance and here the commission has chosen to use the traditional common law principles of the law of agency but let's start let's talk about the standard that knowingly versus willfully and where we come down in terms of the statutory provision here that allows the define willfully as you define it requires a conscious and deliberate omission or comissioner is that not correct right and tell me how you fit what happened here and what c b s did into the concept of conscious and deliber a showing of a sufficient showing of recklessness and here there's there's abundant evidence of that but that isn't that different from what you just said about in effect finding vicarious liability irrespective of court is of the view that traditional responding as per your is inappropriate certainly it ought to be sufficient for liability when you have an agent who commits a deliberate act coupled with the kind of evidence that we have here  deficiency in the supervision of that agent and that evidence is i was just going to ask what we're dealing with concepts here that have been construed by the courts concept deliberate and conscious  me indifference conscious deliberate you know it fits we've got to figure out what conscious and deliberate mean we are can i find in the case law authority for the proposition that indifference meets that test or i would refer you to the  blind is that's more than indifference and i would venture is the f c c did not rely upon willful blindness i know you have it in your brief but that's not the concept that they embrace they embrace conscious and deliberate as meaning willful and yet implication of the first amendment and the a chilling effect of the penalty that you would impose in this case requires some standard of culpability that would be my prior knowledge of for what occurred  aware of serious risks but they were not specifically aware of them that this would happen where do you draw the line on this control issue let's say david letterman has paris hilton on as a guest and obviously there's a contract for her appearance so that there is an arguable element of control here and they review the questions ahead of time and yet she says something unscripted is is the network liable them for whatever she there's a rehearsal i thought you said it was control and it seemed to me if there is the any time there's a contract there's the ability to the ability to control and if so any time there's a contract you could you could arguably say well they have the ability of the right to control because they're presenting this person everyone is going to be an employee you know because the contract if there is a contract for being a guest on a talk show which i don't know i t presumably does not say like and we have the right to tell you what your answer is to the questions that mr letterman asks you or are going to be that's up to the gust to say what they want that's what the contract provided here that that c changed the music and the language and tell them what to say the evidence shows that it did do that with respect for example to kid rock who had a song that referred to driving a brand new lexus and they told him to delete that line because cadillac was one of the sponsors of the super bowl's they clearly did have the right to change what the words were and the focus seemed to be more on him than on the other performers as far as perhaps being a greater risk is that correct well there were there was also concern about to the incident in which britney spears undressed on stage so he was clearly aware of the risk of this kind of deviation from the script separately the n f l in an e mail raised concerns about the lying going to get you naked by the end of the song now there's no reason to be concerned about those words performer would be no more likely to put profanity into that line than any other of the reason you would be concerned about that line is because the possibility that someone might act it out just does miss jackson did there's also  the evidence of the statement from his jackson's choreographer promising that the super bowl would have some shocking moments and saying i don't think the super bowl has ever seen a performance like this as c b s claims that they thought that that referred to the appearance of mr timberlake which was announced in the on screen minutes earlier that the commission appropriately found that to be not a plausible explanation but that's something that's evidence for example of a very simple step that c b s could have done could have taken they could have simply asked  you know thinks that there has to be something some a factor in employment status plus some deficiency in supervision then certainly the fact that they didn't ask the periodic for about the shocking moments the fact that they didn't put anything in their contract requiring the performers to abide by broadcast standards the fact that they there's no evidence that they even informally told the performers about the broadcast standards all of those facts  reconsideration the video delay was available and could have been used it was used only one week later for the grammy awards so it didn't require the invention of some new technology they were able to put in place for the grammys using you know after the show was the basis for that finding  what was the basis for the finding that video delay was available i mean at the time of the super bowl it was the fact that it was used only a week later for the gram is there anything else besides you know i think that's all that nobody else had ever used video delay for an event such as yes that's correct could the corner of your mr and mr miller mention they can travel case yes and said that's really a good analogy for us to use where the newspaper publisher he's responsible for what the publi if the reporters for the newspaper don't create responsibility for the newspaper then arguably our responsibility would not would never exist the issue here is whether or not you might  sanctions where someone has taken good faith efforts to comply with the federal statute and that was the issue addressed in calls that versus the american dental association which we cite in our reply brief in fact this goes specifically to the policy issues that judge rendell was act was asking the court looked at section two seventeen c of the restatement and said that where the employer employer has taken a made a good faith effort to comply with the federal mandates then you would not be able to apply punitive damages in that instance it's not a first amendment argument that the f c c is trying to to use with the control case here the issue is whether or not the doctrine of respond a period or even applies in this circumstance here what the f c c has done is tried to place at war the issues that it's make that it's raising about responding out superior or with the issues of willfulness that is the the less willful c was in consciously ignoring the factors that may have led to risk at the super bowl the more it's responsible for responding out superior or the more control it exerted to try and prevent any untoward events at the broadcast the more it's responsible in to respond ye it's purely a heads i win tails you lose argument and as a result the application of respond out superior or simply doesn't pertain in this case for the same reasons the  argument about willfulness is incorrect as well i think the record is quite clear that c b s did everything that reasonable broadcaster could do twenty supinate the event and try and take measures to not allow it to happen but should they not have put into the contract a provision that the performer would comply with broadcast standards and maybe even pass along violate public policy pass along to the performer  overlooks this in both the janet jackson the justin timberlake contract with the obligation to appear at the dress rehearsals where standards and practices personnel were there to give specific program notes to inspect the costumes and so on i'm trying to imagine a circumstance where janet jackson justin timberlake would be poring over legal documents and trying to determine whether or not they're meeting f c c standards as the f c c suggests should have been required by the contract instead it was a more direct obligation in the contract to have them attend the performances were standards and practices gave them specific instruction was their provision that the rehearsal that they would do nothing in the final performance different from what they did the rehearsal that assurance was given directly to the producer of the show by janet jackson's representatives in the after rehearsal meetings the restraint enforcement pulse of the f c c that if this court were to adopt the policy that the f c c had had for thirty years that as a result broadcasters are going to go while they are going to be able to present nudity at all times of the day or night that is simply not true as a matter of fact the history of broadcasting shows that it's not the safe harbor says that broadcasters can put on indecent material after ten pm but historically they've never done that this is a position that the second circuit in this case but finally i think it's important to make clear that this case is not just about the super bowl this case goes to the zero tolerance approach that these the f c c has adopted since the super bowl decision and since two thousand and four that affects all broadcasting in all live broadcasting today of all days on september eleventh i think it's important to remember this fact particularly since one year ago ten percent of c b s or twenty percent of c b s affiliates covering ten percent of households the united states declined to run the documentary on nine eleven in real time because they were concerned about the language that some of the emergency personnel and fire fighters were using the only thing that had changed in the time that i initially and what it was attempting to run on the fifth anniversary of nine eleven was the change in the f c c policy these changes have had a profound sense oriel effect and for that reason should be reversed what is the remedy that you are seeking in light of that policy well we're seeking reversal of the f c c is decision whether the court chooses to remain and so that they can take a crack at refining some policy dealing with fleeting images they have you know that's one option if that happens as i mentioned before i don't think it would be possible to impose a forfeiture after the fact for the reasons that we stated because there was lack of intent and also because it would be retroactive let me let me go back to the superior theory again assuming we basically agree with your position that still leaves you potentially culpable on the basis that you did not act reasonably something that should have been foreseen why would we not defer under the arbitrary and capricious standard to what the f c c found him i think for a couple of reasons one is i think in the first amendment context the reviewing court looks at the record independently to determine whether or not that decision would have first amendment tension first amendment implications and i think in this case the court's review will show that the record is clear that c b s took every action that a responsible broadcaster could take beyond that the standard the threshold for what the f c c wants to set for what a reasonable broadcaster would do is simply incorrect past decisions both by the f c c and reviewing courts have said that you don't have to satisfy every conceivable every possible outcome that can happen instead you take those actions that are reasonable and those courts have also the d c circuit in particular and recognize that context is different in the case of a live broadcast and in the example the judge went just mentioned earlier in the reconsideration order in pacifica the f c c itself said that where you have a live event and no opportunity for journalistic editing you would not impose that kind of culpability that kind of liability on a licensee and i think the same standard applies here and the other questions just corn revere and mr miller thank you very much for excellent argument we will take the case under advisement and we will certainly prepare a transcript of the argument as we deliberate on this matter and i would ask the parties to share the costs of the transcript for us to take a short recess