Janet Jackson's malfunction: CBS' fine?

by David G. Savage

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

In a one-line order, the justices set aside a ruling in CBS's favor from a federal appeals court in Philadelphia. That court had agreed with the network that the Federal Communications Commission had made a sudden change in its policy on "indecency" that was unjustified because the display of nudity was brief and inadvertent.

Now, the appeals court will have to reconsider that conclusion, in light of last week's high court ruling upholding the FCC's zero-tolerance policy for the broadcast of "fleeting expletives."

In the past, government regulators had fined broadcasters for indecency only for images or words that were shockingly indecent and intentionally aired. In this instance, CBS said it had no warning of the supposed "wardrobe malfunction" which led to a fleeting image across millions of TV screens.

But the high court in its 5-4 ruling last week 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 from an appeals court in New York, similar to the court in Philadelphia, which said the agency's switch in policy 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.

The government's appeal in the Janet Jackson case had remained on hold while the court considered the issue of "fleeting expletives."