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