CBS beats FCC again in Janet Jackson ‘wardrobe malfunction’ case


This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.

CBS scored another legal victory in its long-running fight with the Federal Communications Commission over Janet Jackson’s ‘wardrobe malfunction’ during a Super Bowl halftime show.

A three-judge panel of the U.S. 3rd Circuit Court of Appeals in Philadelphia upheld its earlier ruling that the FCC’s indecency fine of $500,000 against the network was invalid.


At issue is the procedural process the regulatory agency used to fine CBS for the 2004 halftime show in which Justin Timberlake tore off a piece of Janet Jackson’s clothing, exposing her breast for a few seconds to an audience of about 90 million. Jackson later attributed the incident to a ‘wardrobe malfunction,’ a phrase that became part of the lexicon. The court ruled that the FCC’s fine represented an undisclosed change in the enforcement of its indecency policy with regard to ‘fleeting images’ and hence could not be enforced.

‘We again set forth our reasoning and conclusion 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 court said.

The FCC said in a statement that while it was disappointed by the decision, it was pleased that the court ‘did not question the FCC’s statutory responsibility to regulate indecent broadcasting’ and added that the agency would ‘continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.’

“We are gratified that once again the court has ruled in our favor. We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades,’ CBS said in a statement.

It is unclear whether the FCC will appeal the ruling to either the full 3rd Circuit or to the Supreme Court, both of which are options. A spokesman for the FCC referred calls to the Department of Justice and a spokesman there said the matter was under review.

While the 3rd Circuit’s ruling hinges on FCC procedure, in July the 2nd Circuit Court of Appeals in New York, in a case involving Fox Television, ruled that the agency’s enforcement policies regarding indecent programming are ‘unconstitutionally vague and chilling.’ The Supreme Court has agreed to hear the FCC’s appeal of that decision and a ruling is expected next year.



FCC appeals indecency ruling

Appeals court swears off FCC’s indecency regulations

-- Joe Flint