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Court tosses FCC 'wardrobe malfunction' fine
By Associated Press
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PHILADELPHIA -- A federal appeals court on Monday 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 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' 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."

A CBS spokeswoman said the company was working on a statement Monday morning. Messages left for an FCC spokesman were not immediately 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 stations.
Take a look
In a Sunday Feb. 1, 2004 file photo, entertainer Janet Jackson, left, covers her breast after her outfit came undone during the halftime performance with Justin Timberlake at Super Bowl XXXVIII in Houston. A federal appeals court in Philadelphia threw out out a $550,000 fine issued by the Federal Communications Commission against CBS Corp. Monday, July 21, 2008, for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction." (AP Photo/David Phillip, File)
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Reader comments on this story - 7 total

Note: All views and opinions expressed in reader comments are solely those of the individual submitting the comment, and not those of the Pantagraph or its staff.

cats55ire wrote on Jul 21, 2008 1:39 PM:

" What lunacy!!!!!

That's about all I can say about this one! "

alexp wrote on Jul 21, 2008 11:49 AM:

" President Bush stocked the FCC with people that just wasted a lot of tax payer money. Thanks guys, to all of you. "

floor10 wrote on Jul 21, 2008 11:19 AM:

" How much taxpayer money has been wasted over this? There are far worse things on televison every day of the year, and no one seems to bat an eyelash. If we taught children to respect their bodies, and those of others, and teach them instead of to fear sex and nudity, respect it, by taking them to museums and showing them sculpture and art like the Europeans do, we'd all be better off. "

Bill Malott wrote on Jul 21, 2008 11:02 AM:

" Thank Goodness...Glad to see that CBS/Viacom stood up and fought for their freedom. The government should not be controlling what is put out over the airwaves. Our society should determine what is too indecent to show, not a government agency. "

dwarf wrote on Jul 21, 2008 10:41 AM:

" Thank goodness.

This was always much ado about nothing. "

Not so Political wrote on Jul 21, 2008 10:23 AM:

" Timberlake and Jackson should have been getting the fines. CBS maybe should have had the 7 second delay on the show. "

I like toast wrote on Jul 21, 2008 9:57 AM:

" It's about time this happened. The whole thing was ridiculous. To blame CBS for it and to say they were employees of CBS is stretching it just little bit. "
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