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
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
First Amendment Center Online staff contributed to this story.