Janet Jackson’s brief, provocative dance during the 2004 Super Bowl halftime show lasted long enough to trigger more than half a million formal complaints to regulators, tougher indecency rules, dramatically higher maximum fines and video delays on many live programs.
But an appeals court panel ruled Monday that the flash of Jackson’s right breast for 9/16ths of a second was too quick to warrant the $550,000 fine levied by the Federal Communications Commission against CBS Corp. for airing it.
The ruling was another blow to FCC Chairman Kevin J. Martin’s tough indecency policies, which broadcasters have fought aggressively in the courts.
Last year, a different appellate panel struck down the FCC’s near zero-tolerance policy on some expletives, even when they are isolated and impromptu, instituted in the wake of the Jackson incident. The Bush administration appealed and the Supreme Court will hear the case on so-called fleeting expletives this fall.
The decision Monday by a three-judge panel of the U.S. 3rd Circuit Court of Appeals in Philadelphia to put an unscripted flash of nudity in the same legal category as a fleeting expletive raises the already high stakes of the Supreme Court decision. That ruling will be crucial because the FCC’s indecency rules have been in legal limbo for more than two years, forcing thousands of complaints to pile up.
“I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court’s consideration of our indecency rules this fall,” Martin said of the Jackson episode, adding he was “surprised” by the ruling and “disappointed for families and parents.”
But broadcasters and free-speech advocates praised the court decision. “It’s slapping the FCC in the face . . . and they deserve to be slapped in the face because they are violating the 1st Amendment,” said Paul Levinson, chairman of Fordham University’s department of communications and media studies.
In a statement, CBS said the ruling was “an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts.”
The three-judge panel ruled that the FCC acted “arbitrarily and capriciously” in departing from a decades-old policy that said brief nudity did not violate rules designed to keep children from seeing indecent material broadcast between 6 a.m. and 10 p.m. The judges said the FCC had rejected similar fleeting nudity complaints before, including after the TV broadcast of “Schindler’s List” in 2000.
The panel also agreed with CBS that it was not liable because Jackson and Justin Timberlake, who pulled off part of her costume to reveal her breast at the end of their performance, were independent contractors, not network employees.
“The airing of scripted indecency or indecent material in prerecorded programming would likely show recklessness, or may even constitute evidence of actual knowledge or intent,” the judges wrote. “But when unscripted indecent material occurs during a live or spontaneous broadcast, as it did here, the FCC should show that the broadcaster was, at minimum, reckless in causing the indecent material to be transmitted over public airwaves.”
The FCC argued that CBS was reckless in allowing the incident to occur. But the judges sided with CBS, which said the incident was unscripted and that the network had tried to prevent it by having “numerous script reviews and revisions,” “several wardrobe checks” and a five-second audio delay. CBS said video delay technology was not available at the time, but was engineered afterward.
The Jackson incident, which Timberlake described as a “wardrobe malfunction,” outraged many viewers, who flooded the FCC with more than 540,000 complaints. Then-FCC Chairman Michael K. Powell called it a “classless, crass and deplorable stunt,” and the agency unanimously levied the maximum $27,500 fine against 20 network-owned stations for airing it. The uproar led Congress to increase indecency fines to $325,000 per station for an incident.
Many of the complaints came from Parents Television Council members. Tim Winter, the watchdog group’s president, said Monday’s court decision was “utterly absurd” and disputed that fleeting words and images are not offensive.
“Ask a parent how many fleeting profanities are OK during the course of a day with their child. The answer is zero. The same thing with nudity,” he said. “How much fleeting nudity is OK during the Super Bowl? The answer is zero.”