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The Supreme Court declined to review a lower court's ruling that tossed out a $550,000 indecency fine imposed by the Federal Communications Commission against CBS Corp. for airing a split-second glimpse of singer Janet Jackson's breast during the 2004 Super Bowl halftime show (FCC v. CBS Corp., U.S., 11-1240, 6/29/2012).
At the time, the FCC had concluded that the incident--what has become known as the “Janet Jackson wardrobe malfunction”--amounted to “indecent content” in violation of federal law. But the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled in 2008 [45 CR 712]--and again in 2011 [54 CR 495]--that the fine should be voided because the FCC's policy on indecency in broadcasting was “arbitrary and capricious.”
For almost 30 years, the FCC had exempted “fleeting” expletives from the scope of 18 U.S.C. § 1464, which prohibits the broadcasting of “any … indecent … language.” In another indecency another case, FCC v. Fox, which the Supreme Court ruled on the week of June 25, the FCC had ruled that celebrities' isolated uses of “f___” and “s___” on the televised 2002 Billboard Music Awards violated the statute. But in the Janet Jackson case, the Third Circuit found that the agency failed to make clear that it had changed its policy on indecency until after it decided to fine CBS.
“I am not so sure,” Chief Justice John Roberts said in a concurring opinion handed down June 29. “As we recently explained in FCC v. Fox, the FCC's general policy is to conduct a context-specific examination of each allegedly indecent broadcaster in order to determine whether it should be censured. Until 2004, the FCC made a limited exception to this general policy for fleeting expletives. But the agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not. As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children.”
Ultimately, Roberts sided with the majority because the FCC has clarified that its indecency policy applies to fleeting expletives.
“It is now clear that the brevity of an indecent broadcast--be it word or image--cannot immunize it from FCC censure,” Roberts wrote. “Any future 'wardrobe malfunctions' will not be protected on the ground relied on by the court …”
Days earlier, the Supreme Court tossed out FCC fines against ABC and Fox for broadcasting indecent content.
For the court's summary dispositions, including Chief Justice Roberts's concurring opinion, visit http://www.supremecourt.gov/orders/courtorders/062912zr4f6k.pdf.
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