Court tosses FCC Super Bowl ‘wardrobe malfunction’ fine | PostIndependent.com
YOUR AD HERE »

Court tosses FCC Super Bowl ‘wardrobe malfunction’ fine

JOANN LOVIGLIO
Associated Press Writer
Glenwood Springs, CO Colorado

PHILADELPHIA (AP) ” 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.

“””

On the Net:

http://www.ca3.uscourts.gov/opinarch/063575p.pdf


Support Local Journalism

Support Local Journalism

Readers around Glenwood Springs and Garfield County make the Post Independent’s work possible. Your financial contribution supports our efforts to deliver quality, locally relevant journalism.

Now more than ever, your support is critical to help us keep our community informed about the evolving coronavirus pandemic and the impact it is having locally. Every contribution, however large or small, will make a difference.

Each donation will be used exclusively for the development and creation of increased news coverage.

 

Start a dialogue, stay on topic and be civil.
If you don't follow the rules, your comment may be deleted.

User Legend: iconModerator iconTrusted User