A federal appeals court on Wednesday ruled against the Federal Communications Commission for fining CBS for airing singer Janet Jackson’s notorious costume malfunction during a halftime performance for the 2004 Super Bowl.
It was the second time The 3rd Circuit U.S. Court of Appeals of Philadelphia ruled against the FCC, saying the agency “acted arbitrarily” with its $550,000 fine on CBS because it didn’t make clear its intolerance for brief nudity. The court reviewed the case again after the Supreme Court in 2009 upheld the FCC’s decision.
Jackson’s right breast was exposed for nine-sixteenths of a second, the court noted.
But advocates of greater indecency enforcement said the court’s decision ignores a clear protest by many families over the incident.
“Today’s ruling reaches the level of judicial stupidity and is a sucker-punch to families everywhere,” said Tim Winter, president of the Parents Television Council.
The episode has challenged the FCC’s patrolling of indecency on the nation’s broadcast airwaves. The Supreme Court in January will review the agency’s enforcement of fleeting curse words and images, which include nudity.
On Wednesday, the Philadelphia court ruled that the FCC had the authority to ban fleeting expletives and indecent images on TV. But it said the agency’s enforcement of nudity appeared a change in policy that wasn’t clear to broadcasters.
The FCC said it was pleased that the court reaffirmed its ability to police broadcasting for indecency. But it said it was disappointed in the decision.
“The FCC will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves,” a FCC spokesman said.