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 Court Rules Janet Jackson Wardrobe Malfunction Not Indecent After All
A federal appeals court tossed out a $550,000 fine on Monday against CBS for Janet Jackson’s 2004 Super Bowl halftime nipple slip 'wardrobe malfunction'. The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission (FCC) 'acted arbitrarily and capriciously' when it issued the hefty fine over Jackson's fleetingly bare breast.
The Super Bowl halftime big finish ended with Jackson dueting with Justin Timberlake, who was singing "Gonna have you naked by the end of this song."
Timberlake then flicked Jackson's bustier and popped it open for a blink-and-you-missed-it bare breast moment before 90 million viewers.
The court found that in issuing the fine, the FCC had shifted from a 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience.”
The FCC had charged that Jackson’s fleeting nudity was graphic and explicit and that CBS should have been warned. Jackson has said that it was a last minute decision to expose her right breast, which was covered with a silver sunburst on the nipple.
The 3rd Circuit judges—Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes— ruled that "Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."
The judges also ruled that the FCC had shifted from its policy of applying identical standards to words and images when reviewing complaints of indecency.
"The Commission's determination that CBS' broadcast of nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court ruled. "Its orders constituted the announcement of a policy change—that fleeting images would no longer be excluded from the scope of actionable indecency."
CBS challenged the fine, arguing that “fleeting, isolated or unintended” images should not be automatically deemed indecent.
There was no video delay for live events in place at the time, but networks began implementing one after Jackson’s breast-revealing episode.
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