Brief the following case using the IRAC method.

Issue:

Rule:

Application:

Conclusion:

During the finale of the Super Bowl XXXVIII halftime show, entertainers Justin Timberlake and Janet Jackson performed a song and dance routine to Timberlakes song Rock Your Body. As Timberlake ended the duet by sing- ing gonna have you naked by the end of this song, he tore away a portion of Jacksons bustier, momentarily re- vealing her breast. The performers subsequently strained the credulity of the public by terming the episode a ward- robe malfunction.

The Federal Communications Commission issued an or- der fining CBS $550,000 for broadcasting the nudity. The agency explained that the incident violated the FCC pol- icy against broadcasting indecent material, such as nu- dity and expletives, during the hours when children are most likely to watch television. The Third Circuit vacated the order, finding that it violated the Administrative Procedure Act as arbitrary and capricious agency action. The court held that the FCCs order represented an unex- plained departure from the agencys longstanding policy of excusing the broadcast of fleeting moments of indecency. 663 F. 3d 122 (2011).

I am not so sure. As we recently explained in FCC v. Fox Television Stations, Inc., the FCCs general policy is to conduct a context-specific examination of each allegedly

2 FEDERAL COMMUNICATIONS COMMISSION v. CBS CORPORATION

ROBERTS, C. J., concurring

indecent broadcast in order to determine whether it should be censured. 556 U. S. 502, 508 (2009). Until 2004, the FCC made a limited exception to this general policy for fleeting expletives. Ibid. But the agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not. As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to mil- lions of impressionable children.

I nonetheless concur in the Courts denial of certiorari. Even if the Third Circuit is wrong that sanctioning the Super Bowl broadcast constituted an unexplained depar- ture from the FCCs prior indecency policy, that error has been rendered moot going forward. The FCC has made clear that it has abandoned its exception for fleeting exple- tives. Id., at 509510. Looking ahead, it makes no dif- ference as a matter of administrative law whether the FCCs fleeting expletive policy applies to allegedly fleeting images, because the FCC no longer adheres to the fleeting expletive policy. It is now clear that the brevity of an indecent broadcastbe it word or imagecannot immun- ize it from FCC censure. See, e.g., In re Young Broad- casting of San Francisco, Inc., 19 FCC Rcd. 1751 (2004) (censuring a broadcast despite the fleeting nature of the nudity involved). Any future wardrobe malfunctions will not be protected on the ground relied on by the court below.