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3rd Circuit to study 'wardrobe malfunction'

By The Associated Press
09.11.07

WASHINGTON — A federal appeals court will consider this morning whether a notorious "wardrobe malfunction" that bared singer Janet Jackson's breast during a televised 2004 Super Bowl halftime show was indecent, or merely a fleeting and accidental glitch that shouldn't be punished.

The case is the second recent test of the federal government's powers to regulate broadcast indecency. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.

The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments today about the Feb. 1, 2004, halftime show when 90 million Americans watched singer Justin Timberlake pull off part of Janet Jackson's bustier, briefly exposing one of her breasts. The episode was later explained as a problem with her costume.

The FCC fined CBS Corp. $550,000. CBS challenged the fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."

The case is being argued at a time when the Federal Communications Commission's enforcement regime regarding broadcast indecency is in a state of flux. The government is considering whether to take the profanity case to the Supreme Court. At the same time, Congress is working on a legislative remedy.

The agency is hoping it will fare better in Philadelphia than it did in New York.

In that case, the 2nd U.S. Circuit Court of Appeals rejected by a 2-1 vote the agency's polices on indecent speech. The case involved two airings of the "Billboard Music Awards," in which expletives were broadcast over the airwaves.

The 2nd Circuit panel rejected the FCC's policy on procedural grounds, but was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."

The U.S. Office of the Solicitor General, which argues cases on behalf of federal agencies, asked for a 30-day extension to decide whether it would appeal that case to the U.S. Supreme Court.

Meanwhile, in July, the Senate Commerce, Science and Transportation Committee approved the "Protecting Children from Indecent Programming Act," sponsored by Sens. Jay Rockefeller, D-W.Va., and Mark Pryor, D-Ark. The act would require the FCC "to maintain a policy that a single word or image may be considered indecent."

Such a law would neatly encompass both suits. But if it passed, it would not be retroactive. The American Civil Liberties Union said the bill "could have serious and damaging effects on the First Amendment." A companion bill is said to be in the works on the House side.

With Congress occupied by Iraq and other pressing issues, it is hard to say whether the bill will become law, but it has bipartisan support, and Congress has been eager to pass tough broadcast indecency laws in the past.

Regardless, indecency enforcement at the agency is in a holding pattern. The FCC has not proposed a fine since March 2006.

"There are still hundreds of thousands of indecency complaints languishing at FCC," said Dan Isett, director of Corporate and Governmental Affairs for anti-indecency crusader the Parents Television Council. "A great deal of them have nothing to do with fleeting profanity."

As it stands, the FCC must look to its previous standard on unsavory language, which requires context be considered. The word must be a description of "sexual or excretory activities" to bring a fine.

Despite the lack of action at the FCC, television programmers say they are being cautious. And PBS has said it will air two versions of Ken Burns' World War II documentary this fall — one with profanities, one without.


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

Previous
CBS asks 3rd Circuit to overturn Super Bowl fine
Network argues $550,000 penalty for Janet Jackson's 2004 breast-baring performance is 'unconstitutional, contrary to the Communications Act and FCC rules and generally arbitrary, capricious and contrary to law.' 07.31.06

Related

PBS chief calls indecency rules unclear, 'paralyzing'

Paula Kerger says FCC regulations, fines put public TV stations at risk, threaten to deprive viewers of important programs. 07.29.06

2nd Circuit: FCC's policy on accidental expletives is arbitrary
Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

Senate panel moves to restore FCC indecency policy
In bid to counteract 2nd Circuit ruling, committee approves bill that would allow agency to fine television, radio broadcasters for airing profanities, even if they are fleeting references. 07.20.07

FCC seeks $1.4 million for 'NYPD Blue' episode
Agency claims showing woman's bare buttocks in 2003 broadcast was indecent; ABC says finding is inconsistent with prior agency decisions, First Amendment. 01.28.08

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

FCC chairman pans common-sense ruling on ‘fleeting expletives’
By Gene Policinski In case involving Cher, Nicole Richie, 2nd Circuit decision won't unleash torrent of televised indecency that agency says it fears. 06.17.07

Freud, the FCC & the doctrine of respondeat superior
By Ronald K.L. Collins CBS argues before 3rd Circuit that Janet Jackson's breast-baring at 2004 Super Bowl was not only unintentional, but FCC was also way out of bounds in imposing a $550,000 fine. 09.21.07

The FCC's Regulation of Indecency

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