FCC appeals indecency case to Supreme Court

The Federal Communications Commission has asked the U.S. Supreme Court to review the indecency case over Janet Jackson’s breast-baring “wardrobe malfunction” incident at the 2004 Super Bowl.

The FCC this week appealed a ruling by the U.S. 3rd Circuit Court of Appeals in Philadelphia, saying that court was wrong to throw out the case and a $550,000 fine against CBS Corp. in July.

The appellate court cited the FCC practice of not considering objectionable images indecent if they are “fleeting.”

In Jackson’s halftime show at the Super Bowl, she briefly exposed her right breast as she performed with Justin Timberlake. At the time, broadcasters did not employ a video delay for live events, a practice that changed within a week of the game.

The FCC said the court incorrectly applied a rule -- since changed -- regarding expletives that required a profanity be repeated before it was deemed indecent. The FCC contended that the rule didn’t apply to images.

Reaction to the FCC’s appeal was swift from the Media Access Project, which filed a friend-of-the-court brief with the appellate court on behalf of a group of TV writers, directors and producers.

“The impact of the FCC’s decision on the creative process is very profound,” said Andrew Jay Schwartzman, the group’s chief executive. “The FCC’s decisions in this area have made it very difficult for creative artists to exercise their craft.”

The FCC also has an appeal pending before the U.S. Supreme Court in a New York case involving profanity uttered by Cher during a December 2002 music awards show and by Nicole Richie during a December 2003 awards show, both carried on Fox stations.