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Court Throws Out CBS's Janet Jackson Super Bowl 'Wardrobe Malfunction'

By Stephanie Rabiner, Esq. on November 16, 2011 | Last updated on March 21, 2019

Wardrobe malfunction. Nipplegate. The Janet Jackson case.

Whatever you want to call Jackson's 2004 Super Bowl halftime show nip slip, it is ready to fade from the nation's consciousness. After 7 years. Finally.

The Federal Communications Commission had fined CBS $550,000 for the mid-day peep show. But last week, the U.S. Court of Appeals for the 3rd Circuit threw it out. For the second time.

Traditionally, the F.C.C. had excused "fleeting material." But in May 2009, the Supreme Court ruled that the Commission may hold broadcasters responsible for isolated and fleeting incidents of crude language and nudity.

The Supreme Court then ordered the 3rd Circuit to reconsider a July 2008 decision in which it tossed the CBS fine. Instead of focusing on the "fleeting material" policy in last week's decision, the appellate court focused on the timeline.

Under the Administrative Procedure Act, federal agencies may not make decisions in an "arbitrary or capricious" manner. They are thus required employ a factual, reasoned analysis.

The F.C.C. did not officially tighten its fleeting material standards until March 2004. "Wardrobe malfunction" became a part of the American lexicon in February 2004. At the time of Nipplegate, CBS was operating under the Commission's official rules.

Because CBS was not notified of the change, F.C.C. "arbitrarily and capriciously" applied the new standard in the Janet Jackson case. Basically, the 3rd Circuit believes that the Commission was acting irrationally when it fined CBS.

Despite the outcome of the Janet Jackson case, broadcasters will continue to employ the seven-second delay. The F.C.C. legally can, and does, demand that broadcasters deprive the public of future wardrobe malfunctions. Otherwise, they risk a fine.

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