Washington D.C. – The Supreme Court will decide whether nudity on public television can be counted as free speech. Janet Jackson’s now infamous “wardrobe malfunction” and the massive fine that accompanied it are headed to the court to decide. The Obama Administration has asked the court to decide the fate of the fines.
A federal appeals court already told the networks that their $550,000 fine was improperly levied by the Federal Communications Commission. The agency had punished the network fine after the pop singer’s breast was briefly exposed during a live halftime show with fellow entertainer Justin Timberlake at the 2004 Super Bowl.
The Supreme Court has another case on its docket dealing with whether profanity can be censored by the FCC.
The Justice Department told the High Court that Janet Jackson’s incident had no “fleeting images exemption from indecency enforcement” and that the singer’s act was “shocking and pandering,” airing “during a prime-time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity.”
But CBS said that the government’s fine system is arbitrary, with the FCC fining some and leaving other alone for the same behavior.
The three-judge Philadelphia-based 3rd Circuit U.S. Court of Appeals agreed, finding for a second time the FCC had acted “arbitrarily and capriciously,” since the commission did not give the media companies proper prior warning about subsequent changes in its enforcement policies.
The judge for the appeals court wrote,
“An agency may not apply a policy to penalize conduct that occurred before the policy was announced,”
CBS is now arguing to the High Court to just leave the case alone and let the appeals court ruling stand. If the court disagrees witht hem then oral arguments will be scheduled for after the summer.
Congress quickly reacted at the time to the visual shocker by increasing the limit on indecency fines tenfold, up to $325,000 per violation per network. And it said each local affiliate that aired such incidents also could be punished by the same amount.
Family and religious advocacy groups came down hard against the appeals court ruling.
Parents Television Council President Tim Winter said of the ruling,
“Today’s ruling reaches the level of judicial stupidity and is a sucker-punch to families everywhere. In rendering an opinion it wishes to foist on the nation, the Third Circuit has chosen to ignore the law, the facts, Supreme Court precedent, the intent of the Congress and the will of the American people. How can nudity and a striptease in front of 90 million unsuspecting TV viewers not qualify as indecency?”