Supreme Court: Take another look at Janet Jackson wardrobe malfunction

Following up on a ruling from last week, the Supreme Court on Monday revived a possible $550,000 fine against CBS for having shown a split-second image of Janet Jackson’s breast during a Super Bowl halftime show in 2004.

In a one-line order, the justices set aside a federal appeals court ruling in CBS’ favor. The Philadelphia court had ruled that the Federal Communications Commission did not give broadcasters enough notice of a policy change on “fleeting images” of “indecency” and that the display of nudity was likely inadvertent.

Now, the appeals court will have to reconsider that conclusion.

Last week, the Supreme Court upheld the FCC’s zero-tolerance policy for the broadcast of “fleeting expletives.”

The Parents Television Council praised the justices for “siding” with families in the Super Bowl case. Members of the Los Angeles-based group had bombarded the FCC with complaints after the halftime broadcast.


But CBS downplayed the court’s order. “The Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS,” the network said.

If nothing else, Monday’s order means the infamous “wardrobe malfunction,” which lasted nine-sixteenths of a second on TV screens, is likely to live on in the courts for another year or more.

Before 2004, regulators had fined broadcasters for indecent words or images if they were shocking and intentionally aired.

But the FCC, under pressure from Congress and the public, announced a crackdown on broadcasters who aired even a single four-letter word or image of nudity.

Last week, the high court in a 5-4 ruling agreed the FCC could fine broadcasters for airing the “F-word” during prime time, even if it was uttered by a guest on a live program. The decision overturned a ruling by an appeals court in New York that said the agency’s policy change was unfair and not justified.

However, the justices did not decide whether these heavy fines violate the network’s constitutional right to free speech. That issue remains to be decided in both cases.