Nipples are back in :Court overturns ruling on ‘wardrobe malfunction’
A federal appeals court has tossed out the Federal Communications Commission’s $550,000 indecency fine against CBS for the infamous Janet Jackson “wardrobe malfunction” at the 2004 Super Bowl halftime show.
The decision - the second recent blow to FCC chairman Kevin J. Martin’s crackdown on broadcast indecency - said the agency acted “arbitrarily and capriciously” in levying the fine.
Attorneys for the Eye had argued that the commission, in penalizing the broadcaster for the image of a partially naked female breast flash that lasted less than a second, departed from established practice of holding broadcasters liable only for “pervasive” indecency. The 3rd Circuit Court of Appeals in Philadelphia agreed.
“Like any agency, the FCC may change its policies without judicial second-guessing,” the court wrote. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”
“We are gratified by the court’s decision which we hope will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,” CBS 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.”
Last year, another federal appeals court vacated the FCC’s then-new policy of fining broadcasters for one-time, fleeting expletives. The Supreme Court has accepted that decision for review, though a date for oral arguments has not yet been set.
