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Court tosses FCC 'wardrobe malfunction' fine

By The Associated Press
07.21.08

PHILADELPHIA — A federal appeals court today threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction."

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience."

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The 3rd Circuit judges — Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes — also ruled that the FCC had deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court found. "Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency."

"With the recent 3rd Circuit and earlier 2nd Circuit rulings, we have five out of six appellate jurists saying the FCC acted arbitrarily in the exercise of its powers to regulate indecent content," said Ronald Collins, scholar at the First Amendment Center. "This is significant and could have some impact on the FCC v. Fox case currently before the Supreme Court."

A CBS spokeswoman said the company was working on a statement this morning. Messages left for an FCC spokesman were not returned.

The FCC argued that Jackson's nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned. Jackson has said the decision to add a costume reveal — exposing her right breast, which had only a silver sunburst "shield" covering her nipple — came after the final rehearsal. At the time, broadcasters did not employ a video delay for live events, a policy remedied within a week of the game.

In challenging the fine, CBS said that "fleeting, isolated or unintended" images should not automatically be considered indecent. But the FCC argued that Jackson and Timberlake were employees of CBS and that the network should have to pay for their "willful" actions, given its lack of oversight.

In June 2007, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves. The case involved remarks made by Cher and Nicole Richie on awards shows carried on Fox television stations.

First Amendment Center Online staff contributed to this story.


Previous
3rd Circuit to study 'wardrobe malfunction'
Panel to decide whether 2004 Super Bowl halftime incident was indecent or fleeting, accidental glitch that shouldn't be punished. 09.11.07

Related

2nd Circuit halts enforcement of tougher FCC indecency rules (news)
Court also grants commission's request for additional two months to review its finding that 'NYPD Blue,' three other TV shows violated indecency guidelines. 09.08.06

CBS attorney: Network was careful with Super Bowl halftime show (news)
FCC lawyer tells 3rd Circuit that CBS was indifferent to risk that 'a highly sexualized performance' might cross the line. 09.11.07

Supreme Court takes broadcast-indecency case (news)
First such case in 30 years concerns FCC policy allowing fines against broadcasters for 'fleeting expletives' on their programs. 03.17.08

Janet Jackson ‘flap’: Everybody lost (commentary)
By Gene Policinski Letting viewers decide what to see and hear is a lot more efficient than four years of litigation. 07.27.08

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