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CBS Wins Janet Jackson Wardrobe Malfunction Appeal

By Robyn Hagan Cain on November 02, 2011 | Last updated on March 21, 2019

Can you remember which teams played in the Super Bowl in 2004? Neither can we. All we remember is the Janet Jackson wardrobe malfunction.

Apparently, there was a football game between commercials and musical acts. The New England Patriots beat the Carolina Panthers 32-29. Sports Illustrated called it the "Greatest Super Bowl of all time." (Clearly, we Googled this.)

No one cares.

What we continue to care about, nearly eight years later, is the bare breast that we may have seen for 9/16 of a second; the nip slip that cost CBS a $550,000 Federal Communications Commission (FCC) fine.

Today, the Third Circuit Court of Appeals upheld its previous decision tossing the $550,000 indecency fine, finding that “the FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy.”

The Third Circuit ruled in 2008 that the FCC could not collect the fine against CBS, but was forced to re-examine the case in light of the Supreme Court’s 2009 “fleeting expletives” decision. In that case, FCC v. Fox Television, the Court upheld FCC sanctions against Fox for Cher and Nicole Richie’s unscripted cursing during the 2002 and 2003 broadcasts of the Billboard Music Awards.

And it’s possible that we still haven’t heard the final word in the matter.

Yes, Janet Jackson’s breast could be the judicial gift that keeps on giving; the Supreme Court has granted cert for a second time in FCC v. Fox Television, and will decide this term whether the FCC’s indecency standards are too vague to be constitutional. If, as in 2009, the Court sides with the FCC, the Third Circuit Court of Appeals could receive another order to re-hear the Janet Jackson wardrobe malfunction case.

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