NEW: Roberts: "Any future 'wardrobe malfunctions' will not be protected" by this ruling
The Supreme Court erases the fine against CBS for the Super Bowl "wardrobe malfunction"
The incident involved Janet Jackson and the 2004 Super Bowl halftime show
The Supreme Court has tossed out government fines against CBS Inc. and its affiliates for airing the infamous shot of brief nudity involving singer Janet Jackson during the 2004 Super Bowl.
Friday’s action follows the court’s separate, unanimous ruling this month in favor of broadcast television networks. The justices said in that free-speech dispute that the Federal Communications Commission imposed unfair punishment for isolated profanity and sexual content during evening “prime time” hours.
The FCC had imposed a $550,000 fine against CBS and its affiliates for airing the “wardrobe malfunction” incident involving Jackson and Justin Timberlake during the professional football championship game’s halftime show.
The Justice Department had told the high court there was no “fleeting images exemption from indecency enforcement” and that the singer’s act was “shocking and pandering,” airing “during a prime-time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity.”
But CBS countered that the government in recent decades has applied inconsistent rules to indecent words and images, punishing some instances and ignoring others.
A three-judge Philadelphia-based 3rd Circuit U.S. Court of Appeals panel last November agreed, finding for a second time the FCC had acted “arbitrarily and capriciously,” since the commission did not give the media companies proper prior warning about subsequent changes in its enforcement policies.
Chief Justice John Roberts said Friday he was “not so sure.”
“The agency never stated that the (fleeting expletives) exception applied to fleeting images as well, and there was good reason to believe that it did not,” he wrote. “As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children.” The chief justice himself is the only member of the high court who is a parent of two school-age children.
But Roberts nevertheless agreed with his colleagues to dismiss the government’s appeal, in light of the FCC’s newly clarified policy allowing for no exceptions to fleeting expletives or images.
“Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below,” warned Roberts.
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, exposing her breast for nine-sixteenths of a second.
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 may be 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.
The “wardrobe malfunction” case is FCC v. CBS Corp. (11-1240).