Appeals Court Rules against FCC in Janet Jackson Super Bowl Breast Flash

Friday, November 04, 2011
The Federal Communications Commission (FCC) has again lost its case against CBS over the airing of Janet Jackson’s infamous “wardrobe malfunction” in 2004 during the Super Bowl halftime show.
The FCC, then headed by Republican Michael K. Powell, levied a $550,000 fine against the network for allowing Jackson’s breast to air on screen for nine-sixteenths of a second when Justin Timberlake tore away a piece of Jackson’s bustier during their performance of “Rock Your Body.” Regulators claimed CBS had violated rules governing indecency.
But the U.S. Court of Appeals in Philadelphia, for a second time, threw out the penalty, ruling that the FCC policy on indecency was arbitrary. The commission did not make public that such “fleeting images” were forbidden until two months after the 2004 Super Bowl. Thus its order against the network reflected a policy change that had not been previously announced, the court majority said.
Although two of the three justices sided with CBS, Judge Anthony Scirica, who was appointed to the court by President Ronald Reagan, wrote a 53-page dissent that supported the FCC. The other two judges, Marjorie Rendell and Julio Fuentes, were appointed by President Bill Clinton.
-Noel Brinkerhoff, David Wallechinsky
3rd Circuit Tosses Hefty Fine for Super Bowl Wardrobe Malfunction (by Reuben Kramer, Courthouse News Service)

U.S. Court of Appeals for the Third Circuit Ruling in CBS v. FCC (pdf) 


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