Janet Jackson’s Super Bowl "wardrobe malfunction" may have lasted only a fraction of a second, but five years later it’s still wending its way through the courts.
Lawyers representing the Federal Communications Commission and CBS spent about 90 minutes Thursday before a three-judge panel in a Philadelphia appeals court arguing about whether the FCC’s crackdown in the Jackson case was legal.
The FCC had fined 20 CBS stations a total of $550,000 because of the Super Bowl halftime show, claiming that the airing of a glimpse of Jackson’s breast in the highest-rated TV show of the year amounted to indecency.
CBS contended Thursday that in its ruling, the FCC was reversing longstanding policies on how the agency viewed examples of fleeting indecency.
There also were extensive arguments about whether the network had enough prior knowledge about the incident to warrant FCC action.
CBS had contended in its filings that it took reasonable precautions in pre-reviewing the expected content of the halftime show and shouldn’t be penalized because Jackson and Justin Timberlake unilaterally altered the script during the live show.
A decision from the court could take as long as three months.
“It was a G-rated argument about an R-rated case,” said Andrew Schwartzman, president of the Media Access Project, a public interest law firm that is representing Hollywood creatives in the case.
He said the 3rd Circuit judges gave no clear indication of what direction they were leaning.
The appellate court panel has already heard the case once before, in July 2008, when it ruled in favor of CBS. The FCC then appealed to the Supreme Court, which did not review the case.
But the high court’s April 2009 ruling for the FCC in a related indecency case — in which the FCC cited Fox stations for comments made by Cher and Nicole Richie during two separate Billboard Music Awards broadcasts — prompted an order for the lower courts to re-review both cases.
The high court ruled that the FCC had properly followed administrative procedures in taking action — a question in both cases.
Schwartzman said the appellate judges Thursday expressed concerns that the high court in the Fox case could be read as also endorsing the FCC’s right to act on “fleeting” indecency, affecting that part of their own earlier ruling.
In a statement Thursday, CBS said it was hopeful the court will “again recognize that the 2004 Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS.”
“This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite broadcasters' best efforts it may not be possible to block unfortunate fleeting material," CBS said. "Such a decision by the court would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”