US court sides with Janet Jackson's breast

No fine for 'Nipplegate'

By Cade Metz in San Francisco • Get more from this author

Posted in Law, 21st July 2008 21:12 GMT

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America's puritanical streak goes only so far. Today, a US appeals court vaporized the $550,000 fine the FCC famously slapped on CBS for showing the country a majority of Janet Jackson's right breast.

At halftime of the 2004 Super Bowl, as he warbled "I'm gonna have you naked by the end of this song," pop prince Justin Timberlake removed a portion of Ms. Jackson's bustier, and CBS showed nearly 90 million people her nearly bare breast for nine-sixteenths of a second.

Though Timberlake called the incident a "wardrobe malfunction," the Federal Communications Commission soon dropped a $27,500 fine on each of the 20 CBS-owned stations that aired the Super Bowl, a yearly advertising extravaganza/sporting event. The $550,000 penalty was the largest ever for an American TV broadcaster.

But this morning, a trio of judges ruled that the fine was "arbitrary and capricious." In the past, the judges say (PDF), the FCC's definition of indecency did not include stuff that disappears in the blink of an eye. In deciding that a barely noticeable bare breast was indecent, the commission was ignoring its own better judgment.

"During a span of nearly three decades...the commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency," the judges say. "Like an agency, the FCC may change its policies without judicial second guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The FCC had argued that its fleeting material policy applies only to expletives - not bare breasts. But the court destroyed this argument as well. "The balance of 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," the judges continue. "Three decades of FCC action support this conclusion."

US law bars radio and non-cable stations from broadcasting sexual or excretory material between the hours of 6am and 10pm. That's when the kiddies may be watching. When Ms. Jackson's bare breast appeared, a record 500,000 puritans phoned the FCC to complain. Apparently, they weren't comforted by the sun-shaped shield covering her nipple.

In the wake of the incident - dubbed Nipplegate - the big-name American TV networks quickly added delays to their live broadcasts. And just weeks later, after U2 front man Bono used a word beginning with F during an NBC broadcast of the Golden Globe awards, the FCC did in fact change its fleeting material policy.

But like CBS, NBC has challenged the decision. There's hope for America yet. ®

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