Chief Justice Warns About Future Wardrobe Malfunctions

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The Chief Justice of the Supreme Court has essentially warned broadcasters that the Federal Communications Commission has served fair notice that fleeting images and expletives are subject to indecency enforcement.

The Supreme Court generally denies appeals without further comment, but Chief Justice John Roberts took the opportunity of the court's denial of the appeal of the Third Circuit Court smackdown of the FCC's CBS Super Bowl halftime indecency fine to say he was not sure the Third Circuit had gotten it right and to warn that its arbitrary and capricious call on the FCC's Janet Jackson fine would not protect the next "wardrobe malfunction."

Roberts said he concurred in the decision to deny the appeal because even if the Third Circuit were wrong that the FCC had arbitrarily strayed without notice from its fleeting indecency policy, that issue was moot going forward because the FCC had since given notice that it had abandoned its fleeting expletive exception and so had made clear that brevity was no defense, "be it word or image...any 'wardrobe malfunctions' will not be protected on the ground relied on by the court below," said Roberts.

As to whether the Third Circuit got it right, Roberts said he was "not so sure." He drew a distinction between fleeting profanity and images.

"Until 2004, the FCC made a limited exception to this general policy for fleeting expletives," he said. "But the agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not. As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children."

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