The U.S. Supreme Court is telling a lower court to take a second look at questions about the legality of Federal Communications Commission fine on CBS stations for Janet Jackson’s 2004 Super Bowl halftime show “wardrobe malfunction.”
The court’s action means the FCC will get another chance to convince the Third Circuit appellate court that the display of Jackson’s right breast for a fraction of a second on the highest-rated show of the year amounted to a display of an “overall sexually provocative nature” and amounted to an indecency violation.
The FCC had fined CBS a total of $550,000 or $27,500 for each of the 20 CBS owned-and-operated station that aired the broadcast.
The appellate court had tossed out the fine in July 2008, ruling that that the FCC had ignored a long history of treating “fleeting” incidents with reserve in assessing the fine. The court had also questioned the constitutionality of the fine, noting that the halftime show was produced by MTV for CBS and that the performers used the live action to take unscripted action.
The FCC and the Justice Department had been asking the high court to reverse the appellate court ruling.
Instead, today, the high court citing its 5-to-4 ruling supporting the FCC in another indecency case — about comments by Nicole Richie and Cher in two Billboard Music awards show — asked the appellate court to review its earlier decision on the Jackson fine in light of the Fox decision. In the Fox decision, the high court suggested the FCC had greater leeway to change its direction from past enforcement decisions.
CBS in a statement said it wasn’t surprised by the high court’s move, and it suggested differences between the two cases made it unlikely the appellate panel would alter its decision about the fine.
“Today’s procedural decision by the Supreme Court is not unexpected given their decision in the Fox case last week, despite the differences in the two cases,” the network said in a statement. “We are confident that in reviewing the case the Third Circuit will again recognize that the 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 best efforts it may not be possible to block unfortunate fleeting material.”
Jackson’s breast was displayed for only 5/16ths of a second at the end of a stunt in which Justin Timberlake was supposed to pull a string and reveal Jackson’s bodice, but pictures of the incident as captured on digital video recorders were prominently posted on the internet, infuriating Congress.
Congress responded by increasing by a factor of 10 — from $27,500 to $275,000– the potential fines broadcasters can face for indecency violations.
While CBS downplayed the high court’s move, some lawyers suggested it poses some intriguing possibilities.
Douglas J. Wood, a media lawyer for ReedSmith, told TheWrap that the high court decision allowing the FCC greater leeway on enforcement decisions could cause the appellate court to change its mind on the fine.
“Given the decision in the [Fox] case, the lower court may very well reinstate the fine,” Wood said. “It now appears that even fleeting slips can result in substantial fines.”
He noted the high court in the Fox case gave the FCC considerable leeway to alter its past decisions.
“The court will not second-guess a regulatory authority’s discretionary judgment event in the face of a perfectly reasonable argument of over-reaching by the regulator,” he said. “All this may mean that live events will be broadcast on a delay. After all, who can be sure what a disgruntled running back might might say to a referee when his ‘catch’ in the end zone is declared incomplete?”
Harold Feld, legal director, of Public Knowledge, said it’s also possible that the high court action could turning the Janet Jackson case from one about whether the FCC had given enough warning to stations about its intent to start fining for fleeting imagery into one about whether the FCC indecency actions violate First Amendment speech freedoms, potentially setting up a major new high court test for the FCC.
The court’s decision drew praise from the Parents Television Council
“Today the Supreme Court is siding not only with families but with Congress and the overwhelming will of the American people,” said PTC President Tim Winter.
“Last year’s decision by the Third Circuit was simply preposterous. We are grateful that the Supreme Court is asking the lower court to take another look. If broadcasters are going to use the publicly owned airwaves for free, then they must agree to abide by the terms of their licenses and by the broadcast decency law, rather than fight it at every turn.
"We call on the FCC to act quickly on the backlog of broadcast indecency complaints filed by the public,” he said.
