Story highlights

Appeals court finds the FCC acted "arbitrarily and capriciously" in fining CBS

CBS argued the FCC has long punished some indecencies, ignored others

Case involved the 2004 Super Bowl halftime show featuring Janet Jackson

Justin Timberlake tore off part of her bustier during the act, exposing one breast

Washington CNN —  

Government fines against CBS for airing Janet Jackson’s “wardrobe malfunction” on national television were again tossed out by a federal appeals court, the latest free speech episode over indecent, if fleeting, images and words on the public airwaves.

A divided 3rd Circuit U.S. Court of Appeals ruled Wednesday the Federal Communications Commission improperly punished the network with a $550,000 sanction, after the pop singer’s breast was briefly exposed during a live halftime show with fellow entertainer Justin Timberlake at the Super Bowl in 2004.

The Supreme Court in an unusual move had ordered the review two years ago, after its ruling in a similar case over so-called “fleeting expletives” uttered on the four broadcast networks.

CBS had argued the government had long applied the same rules to indecent words and images, punishing some instances and ignoring others.

The three-judge Philadelphia-based panel agreed, again finding the FCC had acted “arbitrarily and capriciously,” since the commission did not give the media companies proper prior warning about subsequent changes in its indecent enforcement policies.

“The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images,” wrote Judge Marjorie Rendell for the 2-1 majority. She said the agency rules changed suddenly, a month after the Jackson incident in Houston.

“An agency may not apply a policy to penalize conduct that occurred before the policy was announced,” said the judge.

After viewer complaints and national media attention, the FCC said the Jackson incident was obscene. In addition to CBS Inc., 20 of its affiliates also were fined.

Congress quickly reacted at the time to the visual shocker by increasing the limit on indecency fines tenfold, up to $325,000 per violation per network. And it said each local affiliate that aired such incidents also could be punished by the same amount.

The FCC claimed the network had “alarm bells” something might have been up, suggesting Jackson and Timberlake may have planned ripping off the woman’s bustier, posing her breast for nine-sixteenths of a second.

Family advocacy groups blasted the court’s 70-page opinion.

“Today’s ruling reaches the level of judicial stupidity and is a sucker-punch to families everywhere. In rendering an opinion it wishes to foist on the nation, the Third Circuit has chosen to ignore the law, the facts, Supreme Court precedent, the intent of the Congress and the will of the American people,” said PTC President Tim Winter. “How can nudity and a striptease in front of 90 million unsuspecting TV viewers not qualify as indecency?”

The FCC was more restrained in its response. “While we are disappointed by the court of appeals decision, we note that the court overturned the FCC’s 2006 forfeiture order on narrow procedural grounds,” said a commission spokesman. “In the meantime, the FCC will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”

There was no immediate reaction from the CBS or the other networks.

This decision comes as the high court is prepared early next year to tackle the larger issue of whether the FCC’s indecency policies – for both words and images – violate the free-speech rights of broadcasters.

The justices in 2009 narrowly upheld the authority of the agency to punish networks for airing profanity. But the justices in that case refused to decide whether the commission’s policy violates the First Amendment guarantee of free speech. It ruled only on their enforcement power. The justices will now tackle that constitutional issue, likely in January.

The government clampdown on obscene images and words began in 2003. The changes became known as the Golden Globes Rule, for singer Bono’s acceptance speech at the live awards show on NBC, where he uttered the phrase “really, really, f—ing brilliant.”

The commission specifically cited celebrities Cher and Nicole Richie for potty-mouth language in the 2002 and 2003 Billboard Music Awards, which aired live on Fox. Richie, in an apparent scripted moment said, “Have you ever tried to get cow s–t out of a Prada purse? It’s not so f—ing simple.”

The complaint against ABC involved “NYPD Blue,” a scripted police drama, and the CBS complaint involved “The Early Show,” a news and interview program.

Enforcement of the law, as well as fines and sanctions for the incidents, has been put on hold while the cases are being argued.

The television networks say their scripted shows no longer air nudity, racy images or expletives, even after 10 p.m., when some potentially vulgar words are permitted.

They worry, however, about unplanned, often spontaneous indecent or profane incidents at live events, such as awards shows and sporting events.

Company officials say such programs are often on a five-second delay, and censors are on hand to bleep any offensive language. But some indecent words can slip through, they admit, and they want to be protected from heavy government fines.

Critics call that laughable. Winter, in a CNN interview, noted that CBS edited the F-word into a recent episode of “Big Brother,” a taped reality show, which he said had to go through multiple reviews, by multiple people in the media organization.

The “wardrobe malfunction” case is CBS Corp. v. FCC (06-3575)