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Janet Jackson Fine Overturned in Court

Dressed up: Janet Jackson\'s Super Bowl flash inspired the term \'wardrobe malfunction\'A federal court has thrown out the FCC’s $550,000 fine against CBS for airing the Janet Jackson – Justin Timberlake “wardrobe malfunction” during the 2004 Super Bowl.

The U.S. government’s campaign against television indecency was dealt a blow on Monday when a court overturned a $550,000 fine against CBS Corp television stations for airing a glimpse of pop singer Janet Jackson’s breast during the 2004 Super Bowl broadcast. The U.S. Court of Appeals for the Third Circuit said the Federal Communications Commission had “arbitrarily and capriciously departed from its prior policy” that exempted fleeting broadcast material from actionable indecency violations.

Jackson’s right breast was exposed to almost 90 million TV viewers for a fraction of a second during the live 2004 Super Bowl football halftime show in what fellow pop singer Justin Timberlake later called a “wardrobe malfunction.” Timberlake ripped off part of Jackson’s bustier exposing Jackson’s breast during the show. Despite the brevity, lawmakers and regulators were outraged and vowed a crackdown on broadcast indecency.

The judges rejected the FCC’s argument that the “fleeting” policy had only applied to words, not images. “Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well- established course of action without supplying notice of and a reasoned explanation for its policy departure,” Chief Judge Anthony Scirica wrote for the three-judge panel that heard the case.

[…]

The decision got a sharp rebuke from the Parents Television Council, an indecency watchdog group. It said the ruling “borders on judicial stupidity” and urged lawmakers in Congress to pass a bill to strengthen anti-indecency enforcement. “If a striptease during the Super Bowl in front of 90 million people, including millions of children, doesn’t fit the parameters of broadcast indecency, then what does?” the group asked.

But, of course, it wasn’t a “striptease” but rather an instantaneous “Did I just see what I thought I saw?!” moment. And, while I don’t believe for a moment that Jackson and/or Timberlake didn’t plan the incident to generate precisely the buzz they got, it’s simply bizarre to fine CBS for airing something that happened outside their control during a live broadcast.

Steven Taylor, whose post on the subject is entitled “Janet Jackson’s Right Breast Ruled Constitutional,” guesses this will be appealed to the Supreme Court. Too bad we don’t Potter Stewart isn’t around any more.

Photo credit:  Daily Mail

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Gollum says:

    The Third Circuit opinion is here. It isn’t quite the victory it should have been. The court overturned the fine mainly because FCC changed its standards without prior notice to the industry, not because the standard is bad in and of itself. Bizarre, to me at least, is the underlying (and still ostensibly valid) premise that a breast is a “sexual organ.”

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  2. Triumph says:

    I love this lady.

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  3. Bithead says:

    Once again, the FCC proves it’s about as useful as as Nancy Pelosi.

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  4. joe says:

    How many citizes in this country would get treated this way? It seems the FCC made a big “to do” over something it dropped years later. How much tax-payer money went into this process? And for what return? Shameful.

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