A federal court this morning threw out a half-million dollar fine against CBS television for the split-second exposure of pop singer Janet Jackson's breast during the 2004 Super Bowl halftime show.
The 3rd circuit court of appeals in Philadelphia overturned a ruling by the Federal Communications Commission (FCC), the US government's indecency watchdog. The court ruled that the body's sanction of the television network was "arbitrary and capricious," and departed from its past policy of more mild censure.
The commission's fine, the largest ever levied against a television broadcaster for indecency, provoked concern that Bush administration officials on the commission had yielded to pressure from social conservative groups.
CBS described the ruling as a victory for the broadcasting industry.
"We are gratified by the court's decision which we hope will lead the [commission] to return to the policy of restrained indecency enforcement it followed for decades," CBS spokeswoman Shannon Jacobs said in a statement. "This is an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts."
On February 1, 2004, during halftime of the National Football League's Super Bowl game between the New England Patriots and the Carolina Panthers, MTV Networks produced a live show featuring Jackson and entertainer Justin Timberlake. The pair sang Timberlake's Rock Your Body, and danced suggestively. Toward the end of the performance, Timberlake sang that he would "have you naked by the end of this song," and tore away part of Jackson's black leather bustier. Jackson's right breast was bared for nine-sixteenths of one second.
The network had implemented a five-second delay to prevent against indecent language from being broadcast, but didn't take such a precaution for video images.
Nearly 90m people, many of them children, were tuned into the show. CBS apologised and said the stunt was unscripted. MTV said the event was "unrehearsed, unplanned and completely unintentional". Timberlake said he regretted the "wardrobe malfunction".
The episode led to outraged cries from conservative groups and hand-wringing from all sides about crassness in the media. The FCC, which regulates television and radio broadcasts over the public airways, received a large number of complaints. Many complaints were generated by organised conservative political groups, and CBS disputed their significance.
The commission ordered CBS to pay $550,000, finding that the display was "graphic and explicit," "shocking and pandering" and also "fleeting," and that the broadcaster had violated "contemporary community standards".
In overturning the fine, the court today found that the commission had long "practiced restraint" in exercising its authority to sanction broadcasters for indecent content, and that the mammoth fine was an improper departure from that.
"During a span of nearly three decades, the commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience," chief judge Anthony Scirica wrote in the decision. "Throughout this period, the commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency."
The commission, the court found, may change its policies "without judicial second-guessing."
"But it cannot change a well-established court of action with supplying notice of and a reasoned explanation for its policy departure," Scirica wrote
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