Posted Sep 12, 2007 12:43 pm CDT
Appeals judges yesterday grilled a Justice Department attorney defending the government’s decision to fine CBS $550,000 for Janet Jackson’s halftime Superbowl performance in which she briefly exposed her breast.
DOJ lawyer Eric Miller said CBS was responsible for Jackson’s actions under the legal theory of respondeat superior, which imposes liability on employers who have the right to control the actions of those who work for them.
Chief Judge Anthony Scirica of the 3rd U.S. Circuit Court of Appeals questioned whether the theory made sense, the Legal Intelligencer reports. “With your theory of respondeat superior, you end up with virtually strict liability regime,” he said.
Miller said the theory was one of vicarious liability rather than strict liability.
Another judge, Julio Fuentes, also raised doubts about the theory. “How do you justify sanctioning CBS in circumstances where it had no prior knowledge that the event was going to take place and that was deliberately concealed from it?” Fuentes asked.
The question related to an argument made by CBS lawyer Robert Corn-Revere, who said a memo from NFL Commissioner Paul Tagliabue that appeared to warn of problems with Jackson expressed only “general concerns.”
The concerns related to “an earlier incident where the NFL had been embarrassed by a performance by Britney Spears,” Corn-Revere said. “Of course, who hasn’t been,” he added, to the amusement of courtroom spectators.