In the eight years since Janet Jackson’s breast was exposed at the 2004 Super Bowl, one thing has permanently changed. The term “wardrobe malfunction” has become a part of our national language.
Yet, after years of legal wrangling and hours of legal fees, it all came down to an afterthought last week when the U.S. Supreme Court, after the major healthcare decision, let stand a lower court decision to throw out the FCC’s $550,000 indecency fine against CBS Corp. for airing the Jackson incident.
It turned out to be much to do about nothing. Jackson’s right breast was briefly exposed to almost 90 million TV viewers after singer Justin Timberlake ripped off part of her bustier during a halftime show performance. The Bush-era FCC was outraged and the network was fined $27,500 for each of the 20 stations it owned.
The court rejected an appeal by the FCC, declining to review a ruling by a U.S. appeals court based in Philadelphia that held the FCC had acted arbitrarily and capriciously in imposing the fine. The FCC began a major indecency crackdown after the Jackson incident, drawing half a million complaints.
Chief Justice John Roberts warned that because of changes in the FCC’s rules since the incident, any similar offense could be punished. “It is now clear that the brevity of an indecent broadcast —be it word or image—cannot immunize it from FCC censure,” Roberts wrote.
He said Timberlake and Jackson “strained the credulity of the public by terming the episode a ‘wardrobe malfunction’ and added, “As every school child knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children.”
Justice Ruth Bader Ginsburg, concurring in a single sentence, observed that a ruling this month by the court in a separate FCC case “affords the commission an opportunity to reconsider its indecency policy in light of technological advances and the commission’s uncertain course.”
In that case, the “FCC v. Fox Television Stations,” other indecency penalties were overturned because the court found that the FCC had not given broadcasters clear enough notice of the bounds of decency.
CBS said it was “gratified to finally put this episode behind us.” It, like all of the major networks, has taken preventive steps to implement technology that delays live programs.
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