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Originally published Tuesday, July 22, 2008 at 12:00 AM

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Appeals court throws out fine against CBS in 'wardrobe malfunction' incident

A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that included...

The Associated Press

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

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled 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 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 3rd Circuit judges — Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes — also ruled the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

"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.

Andrew Jay Schwartzman of the Media Access Project, which filed a friend-of-the-court brief on behalf of a group of TV writers, directors and producers, said the ruling "is an important advance for preserving creative freedom on the air."

But Tim Winter of the watchdog organization Parents Television Council said the decision "borders on judicial stupidity."

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"If a striptease during the Super Bowl in front of 90 million people — including millions of children — doesn't fit the parameters of broadcast indecency, then what does?" Winter said in a statement.

The FCC had argued 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 that Super Bowl.

Copyright © 2008 The Seattle Times Company

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