UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

Welcome to the land of bland: A land where television is dumbed down to a child's level, where broadcasters furiously self-censor, and where most Americans keep returning for more and more and more. It is the land of broadcast television, where so-called oral and visual "indecency" is forbidden from 6:00 a.m. to 10:00 p.m.

When courts first permitted indecency bans on broadcast (versus cable and Internet) television and radio, the theory behind it apparently included reliance on the limited number of available space for broadcasters, who are required by law to include service to the so-called "public interest." That basis by now is archaic, when cable stations and satellite radio abound.

Americans ultimately have themselves to thank for this state of affairs, not only because the anti-censors have not spoken out enough and effectively enough (do too many of them fear television content that they do not like if they speak up against broadcast censorship?), but also because tens of millions of viewers daily return for more of such broadcast pablum.

Enter Janet Jackson and Justin Timberlake at the 2004 Super Bowl, challenging the land of bland during the halftime show, with Timberlake singing "gonna have you naked by the end of this song,” while, unscripted, ripping off part of Jackson's costume to reveal her right breast for nine-sixteenths of a second until CBS cut the image. Were this Europe, the reaction would have been no different than to the thousands of barebreasted women sunning themselves on beaches in France and Italy, exercising their right not to cover up any more than men are required.

This not being Europe, though, countless Americans fear bared breasts. Fortunately, women have won the right to breastfeed in public in most places, and in some locales publicly bared breasts are permitted, whether by legislative intention or oversight. For whatever reason, bared breasts are more eroticized overall in American society than the many places where it is commonplace for women to be barebreasted all the time in public, causing little more notice than if they were covered up.

No sooner does Janet Jackson get removed from the halftime stage than the complaints of her bared breast come flooding into the Federal Communications Commission. Ultimately, finding Ms. Jackson's and Mr. Timberlake's bared breastcapade "indecent" -- how on earth can a bared breast be indecent? -- the FCC hit CBS with a $550,000 fine, which I decried in an interview with the USA Today McNewspaper. Mind you, a $550,000 fine in and of itself is a drop in the bucket for CBS, which likely paid its lawyers more than that amount to litigate against the fine through the appellate level, but repeated indecency fines can add up and can lead to more self censorship.

CBS's investment in legal counsel paid off yesterday with the Third Circuit's reversal of the entire half million dollar fine. CBS v. FCC, __ F.3d _ (3rd Cir. July 21, 2008).  Kudos to fellow First Amendment Lawyers Association member Robert Corn-Revere for successfully arguing the case. Shame on the FCC for having levied any fine, and shame even more for having imposed such a huge fine as to chill smaller broadcasters with much shallower financial pockets.

The Third Circuit -- in a 2-1 opinion, with the concurring-dissenting judge as spiritedly in agreement with the result and with most of the reasoning therefor -- reversed the FCC's fine on CBS on two grounds. First, the court found that the FCC's fine amounted to an arbitrary and capricious retroactive application of a new policy banning fleeting indecent images (the change was spurred by Golden Globe award-accepting Bono's exclamation that “this is really, really f--king brilliant”, where if I were the awardee, I might have opted for the pithier "F--king 'A'") where previously the FCC had at least allowed indecent fleeting words. Second, the Third Circuit found that CBS -- which the FCC conceded had no foreknowledge of the then-impending bared breast -- was not liable (with willfulness being the liability standard) for the breast-baring actions of independent contractors Jackson and Timberlake no matter how one slices it, whether, for instance, on a theory of employer liability or vicarious liability, or on a theory of a responsibility to have time-delay technology for presenting visual images, which technology CBS only had implemented for sound transmissions.

As the Third Circuit recounts, in the FCC's upholding the half million dollar fine on CBS, "the FCC relied on a contextual analysis to find the broadcast of Jackson’s exposed breast was: (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting... It further concluded that the brevity of the image was outweighed by the other two factors... The standard applied by the Commission is derived from its 2001 policy statement setting forth a two-part test for indecency: (1) 'the material must describe or depict sexual or excretory organs or activities,' and (2) it must be 'patently offensive as measured by contemporary community standards for the broadcast medium.'” CBS v. FCC, __ F.3d _.

CBS v. FCC, explains that, unlike obscenity, indecency still gets First Amendment protection on the airwaves, which led the FCC to "confine[] enforcement of indecency restrictions to the hours 'between 6:00 a.m. and 10:00 p.m.' See 47 C.F.R. § 73.3999," which are the hours when youngsters are more likely to be watching and listening to broadcasts. CBS v. FCC, __ F.3d _.

Will the FCC seek review of this case in the Supreme Court? The agency probably has at least four good friends if cert. is granted: certainly Justices Thomas and Scalia, and likely Chief Justice Roberts and Justice Alito. From considering his concurrence in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) -- which left open the door to challenging the multitude of tired and disingenuous negative secondary effects "studies" that are repeatedly recycled by municipalities to try to zone out adult video stores and strip clubs --
Justice Kennedy might be a wild card if the FCC is permitted a Supreme Court appeal. Considering their joining the dissenting camp in Alameda Books and their overall records, it seems a good bet that CBS will find a friend in Justices Stevens, Souter, Ginsburg and Breyer.

In the meantime, congratulations CBS, Janet Jackson, and Justin Timberlake, and thanks to the Third Circuit for keeping life breathed into the First Amendment. Jon Katz.

Hundreds of times I improvised haunting and sometimes sad versions of Gershwin's "Summertime" on the trumpet that for over twenty years has not touched my lips, and now sits in my garage. The song continues moving me as much today as ever.

"Summertime" comes from Gershwin's earth-moving Porgy and Bess, which premiered in 1935 after Gershwin spent several weeks on an island off Charleston, South Carolina, to hear and join in the rhythms of life, music and speaking that he would incorporate into this opera with signature Gershwin music, rather than the typical classical music that ordinarily accompanied operas at the time and usually still does.

First performed during the height of rabid and unabashed racism in the United States, the opera would be overwhelmingly cast with Black actors, as provided by Gershwin's brother Ira, who worked with George as lyricist. Among the many concerned about the opera's portrayal of Black people were Paul Robeson and Duke Ellington. Although the Socialist Worker is not ordinarily my preferred source for reliable information, the paper's likely decidedly anti-racist approach makes it particularly noteworthy that one of its writers wrote in 2005: "Some black artists criticised the work, believing it to portray black communities in too negative a light. Duke Ellington stated 'no Negro could possibly be fooled by Porgy and Bess'. Paul Robeson, who Gershwin asked to play the roll of Porgy, having written the part with his voice in mind, refused the role... In later years however both Ellington and Robeson recorded Gershwin’s music because he had played a role in putting black artists in the mainstream theatres."

A 2006 BBC article says Porgy and Bess "was revived after the war in the United States and attracted performers like Maya Angelou and Todd Duncan.   A filmed version starring Sidney Poitier (after Harry Belafonte turned it down because it demeaned black people) was produced by Samuel Goldwyn in 1959. After that the work encountered the civil rights and black power era." The rest of the brief article is worth a read. In any event, when local public radio covered the opera's current run at the Kennedy Center, I remained curious and concerned about such issues, starting with grammar errors in such song lines as "I loves you Porgy" and "Bess, you is my woman now." 

What prompted me to write today's blog was Gershwin's surprise that he had been able to reach such heights in creating the music to Porgy and Bess. What a wonderful way to exit the planet; he died two years after the opera's premiere.

Similarly, criminal defense lawyers are challenged every day to surmount the often seemingly insurmountable obstacles of reality and would-be reality. How many times do my fellow criminal defense lawyers and I say "Oh sh-t" in the face of apparently insurmountable odds to win a case and, if there is a conviction, to get the most favorable sentence rather than an utterly draconian one? The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty. It reminds me of a story from my trial law guru Steve Rench, about a woman he successfully defended in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff's deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges' jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve's view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions.

Again and again, I encounter staff members, clients, and witnesses (even an expert witness recently) who are fearful of doing something because it takes them out of their comfort or experience zone. Sometimes the fear is as basic as fearing to testify for the first time, or, with staffmembers, to tackle an assignment they have never done before. When I believe the person is capable of rising to the occasion, I encourage the person, sometimes by sharing some of my own trepidations along the path, including the fear of doing anything to let a client down and thus causing a conviction or a worse sentence than otherwise; it might be less fearful for me to draft wills and contracts, but certainly less meaningful and fulfilling. I remind them that it is okay to be fearful, but that the fear should not prevent them from proceeding forward. The idea is not to ignore the fear, but to know the fear and to send it on its way, similarly to the t'ai chi posture of embrace tiger/return [the tiger] to mountain.

Ordinarily, a musician or composer might not be seen as having a fearful occupation. Then again, George Gershwin broke radically new ground and entered new frontiers without knowing how audiences and critics would receive Porgy and Bess -- or even how he might rise to the occasion in creating the opera -- when he easily could have rested on the laurels of such preceding masterpieces as "Rhapsody in Blue" and "An American in Paris".

Of course, storytelling is central to persuading jurors and judges. Gershwin was a masterful storyteller, even when only doing it to music, before adding any lyrics. At least with "Rhapsody in Blue", "An American in Paris" and Porgy and Bess, Gershwin's music takes the listener on a storied journey that takes unexpected turns and captures the five senses and deep feelings along the way.

I stopped playing the trumpet that brought forth my versions of "Summertime" in the fall of 1985, when I moved to a shoebox one-room/no-kitchen ten-foot by ten-foot single resident occupancy apartment in Manhattan when working in the belly of the capitalist beast. Rather than scout out a place to play that would not disturb my neighbors where before I would play at my college's music practice rooms and at my parents' home, I stopped playing, and that carried on to law school, even though I probably could have found music practice space at the university; I was not ready to re-learn to get my mouth muscles back to where they were needed to be to play the way I wanted to play.

Not playing a musical instrument has left a creative and musical void in me. It is time to pick the horn back up, regardless of the state of my lip muscles. As a quote on the door of my ethnomusicology professor Jeff Todd Titon said, loosely remembered: "Music does not expect excellence. It welcomes being surprised by it, but does not require it." Consequently, in writing this blog entry, Gershwin has not only continued to inspire me to treat reality as no obstacle in my law practice, but also to open my trumpet case, to see if the valves are not beyond repair to oil them to working function, to vaseline the slides to move them into tuned performance, and to play and play and play, lost in the sheer enjoyment of the music.  Jon Katz.

ADDENDUM:

Here are some additional excellent Gershwin links, in addition to those above, which include YouTube performances of "Summertime", "Rhapsody in Blue", and "An American in Paris":

- Dubose Heyward's Porgy, which led to Gershwin's opera.

- PBS on Porgy and Bess. Be bowled over by Maya Angelou's discussion of the opera and her role as Ruby in a mid-1950's European tour.

- Film excerpt from Porgy and Bess.

- 2006 NPR coverage of the first time Porgy and Bess's premiere version was re-presented.

- Sarah Vaughan singing "Summertime", and Janis Joplin substantially altering it.

- Claudia Pierpont on "Why We Still Listen to Gershwin."