PHILADELPHIA — 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. 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 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."
Lurking behind the case is a "really big First Amendment issue,'' Benjamin said. "Is there really any difference between broadcast and cable, Internet, books, etc.?
"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."
Tim Winter of the watchdog organization Parents Television Council said the decision "borders on judicial stupidity."
"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?" Winter asked.