Court tosses FCC 'wardrobe malfunction' fine

Associated Press Published: July 22, 2008
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PHILADELPHIA (AP) -- Among the most notorious on-screen gaffes ever, Janet Jackson's breast-baring "wardrobe malfunction" on CBS during the 2004 Super Bowl halftime show drew a $550,000 indecency fine from the Federal Communications Commission. Now a federal appeals court has thrown it out.

A panel of the 3rd U.S. Circuit Court of Appeals ruled Monday that the FCC "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity, which it noted lasted just over half a second. An estimated 90 million people watching the Super Bowl heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court said 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."

Duke University law professor Stuart M. Benjamin, a telecommunications law expert, called the decision "a slap in face for the FCC." But the long-term significance of Monday's ruling is uncertain, given the Supreme Court's decision to take up a broadcast indecency case later this year - the first since 1978.

FCC Chairman Kevin J. Martin said he was "surprised by today's decision and disappointed for families and parents."

"I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall," Martin said.

Lurking behind the case, Benjamin said, is a "really big First Amendment issue: Is there really any difference between broadcast and cable, Internet, books, et cetera?"

"If we apply the same First Amendment scrutiny to broadcast as we do to other forms of communication, all these broadcast indecency rules are almost certainly unconstitutional," he said.

In siding with CBS, the 3rd Circuit panel found that the FCC strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"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."

CBS said it hoped the decision "will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades."

"This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts," the network said.

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