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"Court tosses FCC 'wardrobe malfunction' fine"

"Court tosses FCC 'wardrobe malfunction' fine": The Associated Press provides a report that begins, "A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring 'wardrobe malfunction.'"

You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link.

According to the majority opinion, written by Third Circuit Chief Judge Anthony J. Scirica, "The sanctions stem from CBS's live broadcast of the Super Bowl XXXVIII Halftime Show, in which two performers deviated from the show's script resulting in the exposure of a bare female breast on camera, a deceitful and manipulative act that lasted nine-sixteenths of one second. CBS transmitted the image over public airwaves, resulting in punitive action by the FCC."

The opinion holds that the Federal Communication Commission's apparently new policy of treating fleeing images of indecency more harshly than fleeting indecent utterances to be arbitrary and capricious under the Administrative Procedure Act. The opinion's conclusion begins:

In finding CBS liable for a forfeiture penalty, the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter."

The majority opinion remands the matter to the FCC for further proceedings. Circuit Judge Marjorie O. Rendell dissents from this aspect of the ruling, arguing that the FCC remains free to declare its future policy applicable to fleeting indecent images without exposing CBS to the burden and expense of further administrative proceedings in this case.

Full post as published by How Appealing on July 21, 2008 (boomark / email).