WASHINGTON, DC —This week, CBS appealed the $550,000 fine given to it by the Federal Communications Commission in the wake of Janet Jackson’s highly-notorious “wardrobe malfunction” at the 2004 Super Bowl in Houston, TX.Broadcast live and seen by an estimated 90 million people, Jackson was performing in the halftime show on-stage with Justin Timberlake when he pulled off a portion of her costume. Her right breast, adorned with a sun-shaped nipple piercing, was briefly revealed.
The FCC and CBS argued their cases about whether the glimpse of pop star tit was truly indecent and whether the network should be punished for the pop stars’ stunt or not.
CBS argued that the network took many precautions to look out for the FCC’s guidelines including the selection of Jackson and Timberlake over more provocative stars, reviewing the script of the performance beforehand and putting a five-second delay on the show’s audio.
The FCC disagreed with CBS’ assertion that they exercised caution with FCC lawyer Eric Miller saying, “Timberlake sang the lyrics, “Gonna have you naked by the end of this song,” and that’s exactly what happened.”
The FCC also referenced interviews by Jackson’s choreographer before the Super Bowl where he was quoted as saying that Jackson’s performance would contain “some shocking moments.”
CBS challenged the FCC’s 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.” This case and its outcome will be large for broadcasters.
In the past, the commission has usually declined to act on indecency complaints about “fleeting expletives,” and in 2006 it was rebuffed by the 2nd U.S. Circuit Court of Appeals after Cher and Nicole Ritchie both used profanities on FOX network awards shows. The court’s 2-1 decision was just barely grounded in its contention that the FCC failed to show that its actions were based on consistent reasoning, though the opinion also considers the possibility that any such enforcement might run afoul with First Amendment free speech rights.
Miller argued that Jackson and Timberlake were employees of Viacom — owner of both CBS and MTV, which produced the half-time show for the Super Bowl’s first and, most likely, last time — and that CBS should have to pay for the pop stars’ “willful” actions. Jackson publicly claims that the flashing was an accident and Timberlake told the media at the time that “his own family was offended” by his help in baring one of Jackson’s breasts.
“The FCC’s new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly with regard to television,” said CBS lawyer Robert Corn-Revere.
The court has not revealed when it will rule on the appeal.
