'Wardrobe Malfunction' Fine cancelled by Court

by phoenixesrose | July 21, 2008 at 11:43 am

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What gets me about this article is the final few lines - For nearly four years, Mrs. Jackson and Mr. Timberlake have been claiming that this was an accidental exposure, and it wasn't planned. They've been saying that it was a wardrobe malfunction that surprised both of them, and that it was unexpected. As I recall, the media and the public was debating over this, and since this event American Broadcasters have been fined repeatedly over fleeting images, unscripted curse words, and so on on LIVE television. In addition, they've had to add delays to almost all live television, including sporting events.

Now, whether you agree with the fine or not, or the FCC (Federal Communications Commission) stance on the issue, the last lines of the article should concern us all - as it's now that the truth comes out.

There was NO wardrobe malfunction.

Bold text added by me below:

PHILADELPHIA (AP) - A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction."

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience."

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The article then continues:

"The Commission's determination that CBS's broadcast of a 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 found. "Its orders constituted the announcement of a policy change _ that fleeting images would no longer be excluded from the scope of actionable indecency."

In a statement Monday, CBS said it hoped the decision "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," the network said.

The FCC did not immediately respond to a request for comment.

Finally, it says:

The FCC had argued that Jackson's nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned. Jackson has said the decision to add a costume reveal _ exposing her right breast, which had only a silver sunburst "shield" covering her nipple _ came after the final rehearsal.

At the time, broadcasters did not employ a video delay for live events, a policy remedied within a week of the game.

In challenging the fine, CBS said that "fleeting, isolated or unintended" images should not automatically be considered indecent.

But the FCC said Jackson and Timberlake were employees of CBS and that the network should have to pay for their "willful" actions, given its lack of oversight.

The $550,000 fine represents the maximum $27,500 levied against each of the network's 20 owned-and-operated stations.

Shortly after the 2004 Super Bowl, the FCC changed its policy on fleeting indecency following an NBC broadcast of the Golden Globes awards show on which U2 lead singer Bono uttered an unscripted expletive. The FCC said at the time that the "F-word" in any context "inherently has a sexual connotation" and can trigger enforcement.

NBC challenged the decision, but that case has yet to be resolved.

In June 2007, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves in a case involving remarks by Cher and Nicole Richie on awards shows carried on Fox stations. The Supreme Court will hear the case this fall.