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SCOTUS Rejects FCC Appeal in Janet Jackson Wardobe Malfunction

By Tanya Roth, Esq. on June 29, 2012 4:04 PM

If you watched the 2004 Super Bowl, then you know where the word "wardrobe malfunction" came from. Friday, the Supreme Court rejected an appeal involving that wardrobe malfunction, reports Reuters.

Last April, the Federal Communications Commission filed a writ of certiorari in the Supreme Court, requesting the high court to review the Third Circuit Court of Appeals decision that the FCC-imposed sanctions on CBS were improper.

Let's take you down memory lane: Janet Jackson and Justin Timberlake performed during the halftime show in the 2004 Superbowl. After Justin sang "I'll have you naked by the end of this song," he kept his promise and ripped off a piece of Janet's top, exposing her breast and nipple for a fleeting moment.

In FCC legal terms, it was "fleeting nudity."

The FCC fined CBS $550,000 for it. At the time, however, the FCC had no rules on fleeting images. They only had a rule on fleeting expletives.

CBS argued that the FCC acted arbitrarily when it imposed the fine. Last November, a three-judge panel of the Third Circuit held in favor of CBS, concluding that the policy on fleeting nudity wasn't clear.

The Supreme Court's order on the wardrobe malfunction issue comes after two other rulings this month on the broadcast of profanity and nudity.

One of those rulings involved the brief exposure of a woman's buttocks on the show NYPD Blue, and the other involved expletives used by "a person called Nicole Richie."

In both cases, the Supreme Court ruled against the FCC, saying that the FCC had not given fair notice of changes to its policy against profanity and expletives.

Interestingly, the First Amendment free speech question wasn't even addressed by SCOTUS in those cases.

So it all comes down to the clarity of the policy and the fact that the FCC didn't really have strong rules in place when Janet Jackson's bustier was ripped off back in 2004.

Since then, the FCC has clarified its policy on fleeting images and expletives.

If, and when, the clarified policy goes under the judicial microscope, we might see more First Amendment arguments. But for now, CBS is off the hook.

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