Super Bowl wardrobe malfunction saga ends: Supreme Court refuses appeal

The FCC had fined CBS $550,000 for the Super Bowl wardrobe malfunction in 2004, but an appeals court had sided with CBS. On Friday, the Supreme Court declined to take the case.

|
David Phillip/AP/File
This Feb. 1, 2004, photo, shows Justin Timberlake and Janet Jackson prior to the infamous 'wardrobe malfunction' during the half time performance at Super Bowl XXXVIII in Houston.

It was the breast seen round the world.

Pop stars Janet Jackson and Justin Timberlake were dancing and singing in a choreographed live show at half time of the Super Bowl in February 2004.

While singing the words, “gonna have you naked by the end of this song,” Mr. Timberlake reached toward Ms. Jackson and pulled off the right side of her bustier, exposing her breast.

The nudity was brief – a mere 9/16th of one second of air time – but the exposure was gigantic, with more than 89 million people watching.

Many surprised viewers (including this correspondent) rubbed their eyes in disbelief, wondering whether they really saw what they thought they saw. Others were dead certain what they’d seen and were outraged. Complaints flooded into the Federal Communications Commission.

After an investigation, the FCC decided that the so-called wardrobe malfunction was no accident. The agency fined CBS $550,000.

(To put the fine in context, CBS charged $2.3 million for each 30-second advertising spot during the 2004 Super Bowl.)

CBS disputed the FCC conclusion that the half-time incident violated the agency’s policy on broadcast indecency.

Lawyers argued that the company had not been given fair notice of an FCC crackdown against broadcasts of brief images of nudity during prime time.

They said for years the FCC had made an exception for fleeting expletives broadcast accidentally during prime time. They assumed the same exception applied to fleeting images of nudity.

A panel of the Philadelphia-based Third Circuit Court of Appeals agreed with CBS, ruling that the FCC had failed to give fair warning that it would take enforcement action for fleeting nudity on television in prime time.

The FCC disagreed and took its case to the US Supreme Court.

On Friday, the high court effectively ended the eight-year battle over the wardrobe malfunction by declining to hear an appeal by the FCC seeking to reinstate the enforcement order and $550,000 fine.

In a statement concurring in the court’s decision not to hear the case, Chief Justice John Roberts said he did not necessarily agree with the lower-court decision erasing the fine.

“As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children,” he said.

Regardless of past actions, the FCC’s policy going forward is unambiguous, Chief Justice Roberts said. “It is now clear that the brevity of an indecent broadcast – be it word or image – cannot immunize it from FCC censure,” he said.

“Any future wardrobe malfunctions will not be protected on the ground relied upon by the court below,” he said.

Justice Ruth Bader Ginsburg included a brief note of her own suggesting that the FCC might reconsider its strict indecency policy in light of the continued emergence of cable television and Internet programming, as well as free-speech concerns.

The case was FCC v. CBS (11-1240).

You've read  of  free articles. Subscribe to continue.
Real news can be honest, hopeful, credible, constructive.
What is the Monitor difference? Tackling the tough headlines – with humanity. Listening to sources – with respect. Seeing the story that others are missing by reporting what so often gets overlooked: the values that connect us. That’s Monitor reporting – news that changes how you see the world.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.

QR Code to Super Bowl wardrobe malfunction saga ends: Supreme Court refuses appeal
Read this article in
https://www.csmonitor.com/USA/Justice/2012/0629/Super-Bowl-wardrobe-malfunction-saga-ends-Supreme-Court-refuses-appeal
QR Code to Subscription page
Start your subscription today
https://www.csmonitor.com/subscribe