Legal News

Third Circuit: FCC Malfunctioned in Jackson/Timberlake Indecency Case

By Dan Slater

It’s been four-and-a-half years since 90 million Americans watched Justin Timberlake expose Janet Jackson’s breast at the Super Bowl halftime show — a televised transgression for which the FCC fined CBS $550,000.

Janet Jackson covers her breast after her outfit came undone during the half time performance with Justin Timberlake at Super Bowl XXXVIII in Houston. (AP Photo/David Phillip)

We’re not sure whether the 4-1/2 years of litigation fees exceeded the amount of the fine. But, in any case, CBS was vindicated today, as a three-judge panel of the Third Circuit Court of Appeals tossed the fine, ruling that the FCC “acted arbitrarily and capriciously” in issuing the fine for the fleeting image of nudity. (The breast was exposed for nine-sixteenths of a second.)

Here’s an AP report, and here’s the opinion, authored by Chief Judge Joseph Scirica.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ’shock treatment’ for the audience.”

“Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”

Full post as published by Law Blog - WSJ.com on July 21, 2008 (boomark / email).