By JOHN DUNBAR
The Associated Press
Monday, September 10, 2007; 2:40 PM
WASHINGTON -- A federal appeals court on Tuesday will consider whether a notorious "wardrobe malfunction" that bared singer Janet Jackson's breast during a televised 2004 Super Bowl halftime show was indecent, or merely a fleeting and accidental glitch that shouldn't be punished.
The case is the second recent test of the federal government's powers to regulate broadcast indecency. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.
The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments about the Feb. 1, 2004 halftime show when 90 million Americans watched singer Justin Timberlake pull off part of Janet Jackson's bustier, briefly exposing one of her breasts. The episode was later explained as a problem with her costume.
The FCC fined CBS Corp. $550,000. CBS challenged the fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."
The case is being argued at a time when the Federal Communications Commission's enforcement regime regarding broadcast indecency is in a state of flux. The government is considering whether to take the profanity case to the Supreme Court. At the same time, Congress is working on a legislative remedy.
The agency is hoping it will fare better in Philadelphia than it did in New York.
In that case, the 2nd U.S. Circuit Court of Appeals rejected by a 2-1 vote the agency's polices on indecent speech. The case involved two airings of the "Billboard Music Awards," in which expletives were broadcast over the airwaves.
The court rejected the FCC's policy on procedural grounds, but was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."
The U.S. Office of the Solicitor General, which argues cases on behalf of federal agencies, asked for a 30-day extension to decide whether it will appeal that case to the U.S. Supreme Court.
Meanwhile, in July, the Senate Commerce, Science and Transportation Committee approved the "Protecting Children from Indecent Programming Act," sponsored by Sens. Jay Rockefeller, D-W.Va., and Mark Pryor, D-Ark. The act would require the FCC "to maintain a policy that a single word or image may be considered indecent."
Such a law would neatly encompass both suits. But if it passed, it would not be retroactive. The American Civil Liberties Union said the bill "could have serious and damaging effects on the First Amendment." A companion bill is said to be in the works on the House side.
With Congress occupied by Iraq and other pressing issues, it is hard to say whether the bill will become law, but it has bipartisan support, and Congress has been eager to pass tough broadcast indecency laws in the past.
Regardless, indecency enforcement at the agency is in a holding pattern. The FCC has not proposed a fine since March of 2006.
"There are still hundreds of thousands of indecency complaints languishing at FCC," said Dan Isett, director of Corporate and Governmental Affairs for anti-indecency crusader the Parents Television Council. "A great deal of them have nothing to do with fleeting profanity."
As it stands, the FCC must look to its previous standard on unsavory language, which requires context be considered. The word must be a description of "sexual or excretory activities" to bring a fine.
Despite the lack of action at the FCC, television programmers say they are being cautious. PBS, for example, says it is providing its member stations with two versions of Ken Burns' World War II documentary this fall _ one with profanities, one without.
Arguments are scheduled to get under way at 9:30 a.m. Cameras will not be allowed in the courtroom.