Federal Court: Janet Jackson’s Breast Still Constitutional

Sustaining a ruling that it had reached three years ago, but which the Supreme Court had ordered it to reexamine in the light of later precedent, a Federal Appeals Court has once again ruled that the FCC should not have find CBS Television for the 2004 incident in which Janet Jackson’s breast was momentarily exposed to the viewers of Super Bowl XXXVIII:

WASHINGTON — Janet Jackson’s nipple just can’t seem to stay out of court.

A federal appeals court on Wednesday again threw out a $550,000 fine against CBS by the Federal Communications Commission for Janet Jackson’s famed “wardrobe malfunction” during the 2004 Super Bowl halftime show.

The United States Court of Appeals for the Third Circuit in Philadelphia had issued a similar ruling in July 2008. But that decision was sent back to the appeals court in May 2009 by the Supreme Court after it ruled in a separate case that the F.C.C. had the right to hold broadcasters accountable even for unscripted and isolated foul language.

The appeals court heard a second round of arguments in the Janet Jackson case in February 2010. On Wednesday, it ruled that while the F.C.C. had the ability to police fleeting images — the nipple-baring episode was onscreen for nine-sixteenths of one second — the commission acted arbitrarily because it failed to announce that it had changed its policy until after it decided to punish CBS.

“The F.C.C. failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy,” the appeals court said in a 2-to-1 decision written by Judge Marjorie O. Rendell and joined by Judge Julio M. Fuentes. Chief Judge Anthony J. Scirica dissented.

The F.C.C. issued a statement but did not say whether it would appeal the decision.

“We are pleased that the court did not question the F.C.C.’s statutory responsibility to regulate indecent broadcasting,” the commission said. “While we are disappointed by the Court of Appeals’ decision, we note that the court overturned the F.C.C.’s 2006 forfeiture order on narrow procedural grounds. In the meantime, the F.C.C. will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”

I’ll admit that I’ve never quite figured out the outrage over this incident. First, there’s no evidence that CBS, MTV, or anyone affiliated with the broadcast had any idea that it was going to happen. Fining them a half million dollars over it was simply absurd. Second, its a breast people, women have had them for a few million years now, get over it.

H/T: Steven Taylor who inspired the title to this post with a post he wrote at Poliblog in 2008

FILED UNDER: Law and the Courts, US Politics, , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. sam says:

    You mean the FCC case was a bust?

  2. Moosebreath says:

    “Second, its a breast people, women have had them for a few million years now, get over it.”

    Doug, do you really not understand what motivates the Republicans?

  3. I was being facetious

  4. Franklin says:

    the nipple-baring episode was onscreen for nine-sixteenths of one second

    Sorry, but this irritates the heck out of me. Why use such a precise fraction when it is not actually correct or at least closer to the correct answer than a similar fraction?

  5. Franklin,

    You kept track of the time yourself?

  6. Franklin says:

    No, heh, but somebody did! And then he or she proceeded to mangle the information that was found!

    All I’m saying is that a more accurate fraction could have been used. Although NTSC is technically 29.97 fps, HDTV supports several standards, none of which are multiples or near multiples of 16. I suspect that 17/30 would have been more accurate than 9/16, so why did the writer choose the latter?

  7. Janis Gore says:

    It was such a cheap trick. More interesting and much prettier are Julie Andrews’ breasts in the film S.O.B.

  8. anjin-san says:

    Well Janice, now you have our attention, don’t stop there 🙂

  9. Janis Gore says:

    I was shocked. Mary Poppins? But the woman was married to Blake Edwards for many years.

    Do not watch the movie past the scene. Otherwise “Polly-wolly doodle all day ” will be your new ear-worm.

    But even at her age she did have pretty, small pert breasts. I’m an expert on the the larger, floppier ones — much like Janet Jackson’s.