$550K "Wardrobe Malfunction" Fine Tossed

Court: FCC Acted Aribtrarily By Fining CBS For Janet Jackson's Super Bowl Breast-Baring Stunt

(CBS/AP)  A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction."

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court found that 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."

"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."

The 3rd Circuit judges - Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes - also ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court found. "Its orders constituted the announcement of a policy change - that fleeting images would no longer be excluded from the scope of actionable indecency."

A CBS spokeswoman said the company was working on a statement Monday morning. Messages left for an FCC spokesman were not immediately returned.

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Photos: Halftime Performers Steal The Show

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The FCC argued that Jackson's nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned. Jackson has said the decision to add a costume reveal - exposing her right breast, which had only a silver sunburst "shield" covering her nipple - came after the final rehearsal.

At the time, broadcasters did not employ a video delay for live events, a policy remedied within a week of the game.

In challenging the fine, CBS said that "fleeting, isolated or unintended" images should not automatically be considered indecent.

But the FCC argued that Jackson and Timberlake were employees of CBS and that the network should have to pay for their "willful" actions, given its lack of oversight.

In June 2007, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves. The case involved remarks made by Cher and Nicole Richie on awards shows carried on Fox stations.

[omded]

Grouch,
As much as it appears you''d like to, you don''t own this message board. I''ll stay around a long as I like. Fortunately, and thanks to some good judges who still value the freedoms we share as Americans, good people like Janet are still free to share their beauty without concern for harrasment from strange people like you. Thank you Janet, and thank you judges!

Now, back to you, Grouch. I''ve reviewed your posts, and I still draw the same conclusion. You need to get a life. If you want to feel important, stop trying to "protect" everyone, and start trying to inspire them. If you''d come to all of us free thinkers with a genuine intent to inspire us with your examples, there''s a decent chance you would have won some of us over. But, as you are, there''s little chance you''ll accomplish anything.

[txgrouch2006]

BarbaraM99 wrote
I live in Seattle.
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That''s nice. I used to live in Austin, where it''s LEGAL for women to appear in public topless. ALL YEAR LONG, not just during Mardi Gras.

In the four years I lived there, I saw only ONE WOMAN topless in public.

So if you want television to be realistic, WOMEN WOULDN''T BE FLOUNCING AROUND HALF NAKED, because they don''t in real life even when they can do it legally.

[barbaram99]

I know we talking about the telly and we have a problem when A womam''s breast is bared. Or someone saids 1 of the 7 words barred on the air. Years ago that list was longer. Janet moved on. I live in Seattle.

[txgrouch2006]

omded wrote
I''''m sure you can do much better.
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You''re STILL here? If you really need to depend on television to show you a woman''s "beauties," then you need to GROW UP and GET A LIFE.

[omded]

Grouch,
Please don''t insult God by claiming to the world that He has anything to do with the Bible. The Bible is your book, not God''s. Who told you the Bible is "God''s Word". Your Mother? Have you ever had the courage to seek the truth for yourself?

If you have a vision of how the world should be, you need to inspire people to make that vision reality. You don''t do that by being a grouch. You do that by setting an example. Then, when people see you, they''ll be inspired to be like you.

I''m sure you can do much better.

[txgrouch2006]

BarabaraM99 wrote
There are some nations where they don''''t don a top and they are women
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But we''re talking about television in THIS COUNTRY. That has nothing to do with it.

[barbaram99]

Go and try to find programming that was done years ago. If so check out the way they dressed. There are some nations where they don''t don a top and they are women. Here in America WOMEN must wear a top and men go toppless. Some men do have big breasts and they are men. Yep they go shirtless.

[txgrouch2006]

If you have to depend on television to show you the "beauties" (snicker!) of a woman''s body, then maybe

YOU''RE THE ONE who needs to GROW UP and GET A LIFE!

[txgrouch2006]

omded wrote
What did God ever do to you that you would insult Him so?
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Still on the Big Eye payroll, eh omded? They must be paying you well for you to be so persistent.

You''ve already proven that you know nothing about God. How can you know God''s will if you don''t believe His Word, the Bible?

Please don''t speak for God if you won''t believe in His Word.

[omded]

God goes to all the trouble of creating true beauty, and you call it "smut"? What did God ever do to you that you would insult Him so? Sorry to tell you this, Grouch, but I think you need to get a life. Maybe you just watch too much TV. May I suggest getting a hobby? If you''re unable to leave your house, I''m very sorry. Perhaps a friend can go to the local library and check out some movies that you approve of. Maybe you should take up jigsaw puzzles. In any event, you''re doing no one any favors by blocking such harmless stuff from T.V.. You''re doing no one any favors by attempting to place a derogatory slant on God''s art. You sound like an angry person. Whatever it is that offended you, we''re all very sorry. But, forcing your views of "morality" on everyone else is a poor way of dealing with it.