Published February 20, 2009
It lasted 0.5625 seconds, was seen by 143 million people and cost CBS $550,000.
The supposedly obscene flash of R&B singer Janet Jackson's right breast during her half time performance led to what the Federal Communications Commission called an "unprecedented number" of complaints about the broadcast.
After reviewing the tape, the FCC fined CBS $550,000 for broadcasting material it found to be graphic and explicit. The FCC concluded that the incident "was shocking to the viewing audience...during a prime time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity."
CBS was let off the hook by the Philadelphia-based Third Circuit Court of Appeals. It ruled that the FCC fine was counter to the agency's past practices and considered the penalty against CBS to be "arbitrary and capricious."
It also took the FCC to task for its conclusion that CBS was directly liable for the actions taken by Jackson and fellow performer Justin Timberlake. The Third Circuit ruled the "First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors..."
In its brief to the high court, the FCC argues the Third Circuit "erroneously construed" its reasoning for the fines and is asking the Supreme Court to reinstate the penalty. Interestingly, the commission is also asking the court to delay its decision in granting the case until the "fleeting expletive" case is resolved.
That case involved the use of several swear words by Cher and Nicole Ritchie during live awards shows. The fleeting expletive case was heard on Nov. 4. The court has already returned its rulings from the other two non-related cases it heard that day.
CBS has filed its own brief and not surprisingly is asking the court to not take the case. The television network contends the legal issues presented by the FCC do not sufficiently rise to the level that merit further review.
It is likely the court's ruling in the fleeting expletive case will control its decision about the wardrobe malfunction lawsuit.