Court: CBS not liable for Super Bowl ‘wardrobe malfunction’

A federal appeals court in Philadelphia has overruled the FCC's $550,000 fine against CBS for the infamous Janet Jackson "wardrobe malfunction" during the 2004 Super Bowl halftime show.

In applauding the ruling, CBS expressed hope the FCC would be more restrained in policing public taste.

The Parents Television Council, however, denounced the decision. "It borders on judicial stupidity," said Tim Winter, council president.

Singer Janet Jackson's breast became briefly exposed during a performance with Justin Timberlake, and the Federal Communications Commission fined CBS $550,000 for negligently contributing to indecency.

As millions watched, Timberlake reached for Jackson's bustier, while singing, "Gonna have you naked by the end of this song."

The performers may have intended to reveal only a lacy red bra, as a Jackson spokesperson said afterward, but instead viewers saw Jackson's breast, which had a sunburst decoration covering her nipple.

The costume reveal was added during the final rehearsal, Jackson has said.

Chief Judge Anthony J. Scirica wrote the opinion handed down this morning by a three-judge panel of the U.S. Court of Appeals for the Third Circuit.

Judge Marjorie O. Rendell, wife of Gov. Rendell, dissented in part, questioning how intentional CBS's participation had to be. The third judge is Julio M. Fuentes.

The FCC, Scirica wrote, "arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency."

CBS's broadcast of Jackson's breast lasted "nine-sixteenths of one second," the opinion noted.

The ruling further stated that CBS was not responsible "for the acts of the acts of Janet Jackson and Justin

Timberlake, independent contractors hired for the limited purposes of the Halftime Show."

The FCC failed to show that CBS knowingly and willfully helped orchestrate the alleged indecency, according to the ruling.

Such willfulness, Scirica wrote, is "the constitutional minimum showing for penalizing the speech or expression of broadcasters."

"Once again, a three-judge panel has hijacked the will of the American people – not to mention the intent of the Congress . . . when it comes to indecent content on the public airwaves," said Winter, head of the Parents Television Council, which filed an amicus brief in the case. "While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court's opinion goes beyond judicial activism; it borders on judicial stupidity.

"If a striptease during the Super Bowl in front of 90 million people – including millions of children – doesn't fit the parameters of broadcast indecency, then what does?"

CBS issued the following statement: "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. 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."

Judge Rendell agreed that the fine was unjustified, but disagreed about the degree of willfulness the FCC had to demonstrate, saying the "the act of broadcasting the indecent material" may be enough of a "conscious and deliberate act."

The FCC had not responded to requests for comment as of early this afternoon.