November 02, 2011 12:26pm PT by Eriq Gardner
It's Official (Again): FCC Arbitrarily Punished CBS For Janet Jackson 'Wardrobe Malfunction'
Janet Jackson's infamous "wardrobe malfunction" may have been fleeting but the wheels of justice certainly are not. More than seven years after Jackson exposed her breast during the Super Bowl XXXVIII halftime show, the 3rd Circuit Court of Appeal has once again determined the FCC has failed to justify a decision to fine CBS for indecency.
After the "wardrobe malfunction," the FCC began cracking down on indecency on the TV airwaves.
For what happened on February 1, 2004, the FCC fined CBS a record $550,000.
CBS appealed the decision and in 2008, 3rd Circuit judge Marjorie Rendell overturned the fine on the reasoning that the commission had not given the networks enough advanced notice and acted arbitrarily in enforcing indecency policies.
The case then went before the U.S. Supreme Court,, which remanded the case back to the 3rd Circuit for further consideration. The high court justices found that the FCC was "entirely rational" when changing its policy, but left open the question whether the fine violated the network's constitutional rights.
Tasked with reviewing the "wardrobe malfunction" case once again, Justice Rendell reaches pretty much the same conclusion as the first time.
"While we can understand the Supreme Court‘s desire that we re-examine our holdings in light of its opinion in Fox," writes Rendell, referring to a similar case involving fleeting obscenities on television, "We conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case."
The judge goes on to note that “The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not fleeting images."
Here's the entire decision from the 3rd Circuit Court of Appeals today, including a dissent from Justice Anthony Scirica, who argues that broadcast television is subject to greater oversight and that the constitutional objections must be rejected.