Federal Appeals Considers Janet Jackson's 'Wardrobe Malfunction'

PHILADELPHIA – CBS Corp. should not be fined for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction" because the stunt was both fleeting and unauthorized, a lawyer for the company argued Tuesday.

The network also accused the Federal Communications Commission of applying "mushy" and newly restrictive standards when it fined CBS $550,000 for the half-second of partial nudity.

"The FCC's new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly with regard to television," said Robert Corn-Revere, a CBS lawyer who asked a federal appeals court panel to overturn the fine.

Several third parties, including two former FCC chairmen who complained the agency was engaged in a Victorian crusade, filed briefs in support of CBS.

The agency, though, called CBS indifferent to the risk that "a highly sexualized performance" might cross the line.

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 scene capped a show that featured a crotch-grabbing performance by Nelly and steamy lyrics from Jackson and others.

The case is the second recent test of the federal government's powers to regulate broadcast indecency. In June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves. The case involved remarks made by Cher and Nicole Richie on awards shows carried on Fox network stations.

In a footnote to that ruling, the 2nd Circuit noted that President Bush and Vice President Cheney have been quoted using such expletives.

FCC lawyer Eric Miller argued Tuesday that Jackson's costume reveal, although fleeting, was graphic and explicit. Still images of the moment in question soon made their way around the Internet.

"The idea of an exception for fleeting nudity flies in the face of common sense," Miller said.

CBS should have been forewarned, especially when Jackson's choreographer boasted four days earlier that the show would include "some shocking moments," he argued.

Corn-Revere said the network took many precautions, such as choosing Jackson and Timberlake over more provocative performers, reviewing the script, voicing concerns about ad-libbed remarks and applying a 5-second audio delay.

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 didn't employ a video delay for live events, which was remedied within a week of the game.

In challenging the fine, CBS said that "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."

Miller also argued that Jackson and Timberlake were employees of CBS and that the network should have to pay for their "willful" actions, given its lack of oversight.

The 3rd Circuit judges didn't indicate when they would rule. The $550,000 fine represents the maximum $27,500 levied against each of the network's 20 owned-and-operated stations.