Out of Control Policy Blog

Court Tosses FCC ëWardrobe Malfunctioní Fine

The Federal Communications Commission acted in an "arbitrary and capricious" manner in fining CBS $550,000 for a broadcasting a glimpse of Janet Jackson's right breast during the half-time show of the 2004 Super Bowl, said a U.S Court of Appeals yesterday.

The now-famous "wardrobe malfunction" occurred that the end of the live televised performance when co-headliner Justin Timberlake tore open part of Jackson's jacket. Jackson's breast was visible for 9/16ths of a second in a long shot taking in the performers, stage and stadium background. It was never clear whether the move was intentional or not. While most viewers could discern that for a fleeting moment Jackson appeared to have flashed them, it took DVR slow-motion replays to confirm the full extent, such as it was, of TV's most famous nipslip.

That half-second of bared breast sent the Miss Grundys of our nation, most of whom are concentrated at the Parents Television Council, into high dudgeon about the lax mores of broadcasters. They found a ready ear in FCC Chairman Kevin Martin, who slapped CBS and its affiliates with the fine.

The Third Circuit Court of Appeals tossed it out, stating 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."

The decision echoed a Second Circuit ruling last year that nullified FCC enforcement fines against the use of fleeting instances of profanity that might occur during broadcasts. The FCC had sought to punish MTV and NBC for adult language aired during two music awards programs. Like the Third Circuit, the court again attacked the arbitrary nature of Martin's enforcement, citing that Martin had not enforced language guidelines for the airing of such films as Saving Private Ryan.

The FCC appealed that decision to the U.S. Supreme Court and a ruling is expected later this term. If the court rules against the FCC (it helps to remember that no government attempt at content regulation has survived a Supreme Court test), we may be a day closer to the point where broadcast TV is given the same content freedom as cable, movies and the Web.

Although he doesn't come at it from a libertarian perspective, MSNBC's Michael Ventre, summed up the silliness of the case.

Monday's ruling struck a blow for all those Americans who love nipples and felt the initial uproar was preposterously overstuffed. It also shows how it only took four years for sanity to again reign when it comes to enforcing a moral code in the media. ...

[The court] didn't go the logical step further, though, and declare that the FCC's behavior constituted indecency in and of itself. The FCC kowtowed to those right-wing fringe elements that were out for blood from an innocent nipple. The agency is an inert and pliable body most of the time anyway, and in most administrations, choosing to act only when one constituency raises such a ruckus that it has no choice.

The $550,000 fine was an example that the FCC had been stormed by Taliban-like elements intent on pouncing at the slightest deviation from a strict code of behavior. The court's ruling Monday effectively drove those folks back into the hills. Gas bags on Capitol Hill, who at the time used Jackson's nipple as a jumping-off point to bemoan the decline of our civilization, look a lot dopier today.


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