Court Overturns ‘Wardrobe-Malfunction’ Ruling

Court Overturns ‘Wardrobe-Malfunction’ Ruling
November 21, 2011

The U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s $550,000 fine of CBS for Janet Jackson’s 2004 Super Bowl “wardrobe malfunction.” In its opinion, rendered November 2, 2011, the court ruled the FCC’s fine represented an undisclosed change in the enforcement of its indecency policy regarding “fleeting images” and therefore could not be enforced.

The three-judge panel in Philadelphia ruled in favor of the network in 2008, but revisited its decision after the Supreme Court requested a review.

The court determined that the FCC wrongly fined Jackson and the network for her half-time performance with Justin Timberlake in which the singer’s breast was exposed. The FCC’s decision was made “arbitrarily and capriciously,” according to the court.

“We again set forth our reasoning and conclusion that the FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy,” wrote the court.

No Censorship Role
The infamous incident was seen by more than 90 million football fans during the broadcast of Super Bowl XXXVIII.

CBS was reportedly pleased with the decision.

“We are gratified that once again the court has ruled in our favor. We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,” said CBS spokeswoman Shannon Jacobs in a press statement.

“The FCC makes too much of these types of things by applying humongous fines for slip-ups, accidents or just plain crassness, according to Marc Oestreich, legislative analyst for The Heartland Institute, which publishes InfoTech & Telecom News. “Actually making huge deals about these things brings more attention to the offense that more than likely would’ve been forgotten if not for the light cast upon it by government scrutiny,” he said.

“In short, this is not an issue of prudishness nor is it a license for an anything-goes mentality. But government shouldn’t intrude into a censorship role where it has no place. The industry will self-regulate itself based on what offends or delights its viewers – the latter having absolute control over what does or doesn’t appear on home television sets subsequent to such offenses,” he added.

‘An Empty Gesture’
Attorney Robert J. Miller, a telecommunications regulatory attorney in the Southwest says the FCC’s decision to fine CBS was hollow from the beginning.

“I think there are already enough incentives in place that broadcasters will try and do the right thing,” Miller said. “In this case, fining CBS was an empty gesture. It’s kind of like fining a professional baseball player $10,000 when he earns $10 million – he will never miss the money. CBS has deep enough pockets that it’s a very similar analogy. The broadcasters are not negligent and in this case, Janet Jackson’s exposed breast was not intentional and it was fleeting. The FCC did it to prove a point. They’re still very political,” he said.

There are plenty of good ways to police the airwaves without resorting to punitive fines, Miller continued. “Indecency is a function of what time of day the incident is broadcast, but I also believe that it is the responsibility of the parents for what their children watch. CBS did not act irresponsibly or negligently in this matter,” Miller explained.

‘Subject to Rigorous Oversight’
Andrew Jay Schwartzman, a policy director of the Media Access Project, a Washington, DC-based public policy law firm, agrees with Miller that the FCC is political.

“No more than three of the five members can be of the same political party, therefore it is partisan by nature. The FCC is exercising legislative authority through a delegation from Congress. Although they’re an independent agency, they’re subject to rigorous oversight by Congress,” Schwartzman said.

“You see, Congress really cares. Otherwise, the FCC would not have gone after CBS for the Janet Jackson wardrobe malfunction. If Congress was not in favor of this, then they would have come down really hard on the FCC for the fine,” Schwartzman said.

Kenneth Artz ( writes from Dallas, Texas.

Internet Info

“Petition for Review of Orders of the Federal Communications Commission FCC Nos. 06-19 and 06-68,” United States Court of Appeal for the Third Circuit, November 2, 2011: