Seeking to bolster the government’s ability to enforce obscenity laws, the Obama administration has asked the U.S. Supreme Court to reinstate the Federal Communications Commission’s (FCC) fine against CBS over Janet Jackson’s “wardrobe malfunction.”

 

Following the 2004 Super Bowl, the FCC, then headed by Republican Michael K. Powell, punished the network with a $550,000 fine for allowing Jackson’s breast to air on screen for nine-sixteenths of a second when Justin Timberlake tore away a piece of Jackson’s bustier during their performance of “Rock Your Body,” while halftime audiences watched.

 

CBS challenged the FCC’s decision in federal court, arguing that the regulatory agency had inconsistently applied rules to indecent words and images broadcast by networks. In November 2011 CBS won its case when the three-judge Philadelphia-based 3rd Circuit U.S. Court of Appeals pointed out that the FCC did not make public that such “fleeting images” were forbidden until two months after the 2004 Super Bowl. Thus its order against the network reflected a policy change that had not been previously announced.

 

This loss prompted the U.S. Department of Justice, now in Democratic hands, to ask the Supreme Court to review the matter.

 

Federal prosecutors contend Jackson’s performance was “shocking and pandering,” as well as highly inappropriate considering it occurred “during a prime-time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity.”

-Noel Brinkerhoff, David Wallechinsky

 

Government Asks High Court To Review Jackson 'Wardrobe Malfunction' Incident (by Bill Mears, CNN)

Supreme Court to Hear Challenge to FCC’s Right to Regulate “Indecency” on TV (by Noel Brinkerhoff and David Wallechinsky, AllGov)