Washington—The Bush administration wants the U.S. Supreme Court to uphold the Federal Communications Commission's fine against CBS for airing singer Janet Jackson's fleeting breast exposure during the 2004 Super Bowl halftime show.
"The FCC and [the Department of Justice] have filed a petition for certiorari in the Janet Jackson case. The petition contends that the Third Circuit failed to give sufficient deference to the findings of the FCC and asked that the petition be held in abeyance until the Fox v. FCC case is decided. The petition was filed on [Wednesday] and arrived by mail [Thursday]," said Andrew Jay Schwartzman, president of the Media Access Project, a public interest law firm.
In July, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia rejected the FCC's $550,000 fine for Jackson's split-second so-called wardrobe malfunction.
The three-judge panel ruled that the fine was illegal because the agency had changed policy about fleeting indecent images without proper notice to broadcast licensees.
“Like any agency, the FCC may change its policies without judicial second guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure,” the court ruled in a 99-page opinion.
FCC chairman Kevin Martin was caught off guard by the court’s decision.
“I am surprised by today’s decision and disappointed for families and parents,” Martin said in a statement at the time. “The Super Bowl is one of the most watched shows on television, aired during the hours when children are most likely to be in the audience. Hundreds of thousands of people complained about the show, and a unanimous Commission found that it was inappropriate for broadcast television.”
On Nov. 4, the Supreme Court heard oral arguments in a case about whether the FCC may punish TV stations for the one-time broadcast of the f-word and s-word. Fox Television appealed rulings that involved words used by Cher and Nicole Richie during live music awards shows.
“We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts,” CBS officials said in a statement. “Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”