- The Washington Times - Monday, July 21, 2008

A federal appeals court on Monday tossed out a $550,000 fine against CBS Corp. for airing singer Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super Bowl, in which her breast flashed briefly across the screen. The decision is yet another blow to a Federal Communications Commission policy on “fleeting” material that is being reviewed by the Supreme Court this fall.

The Third U.S. Circuit Court of Appeals said the FCC’s decision to fine CBS for a brief glimpse of Ms. Jackson’s breast was “arbitrary and capricious” because it deviated from the agency’s longstanding policy of penalizing broadcasters for “indecent material so pervasive as to amount to ‘shock treatment’ for the audience.”

An estimated 90 million viewers were watching the 2004 Super Bowl half-time show when singer Justin Timberlake removed Ms. Jackson’s bustier, revealing her breast for nine-sixteenths of a second. The FCC determined CBS’s actions were “willful” and that the broadcaster did not take “reasonable precautions” to avoid the flap.

While the court acknowledged that federal media regulators are free to change their policies, Chief Judge Anthony J. Scirica chided the agency for changing “a well-established course of action without supplying notice of a reasoned explanation for its policy departure.” The court threw out the fine but remanded the case back to the FCC, which can either appeal it or alter its reasoning.

An FCC policy on fleeting broadcasts of expletives is the subject of another case, involving Fox Television Stations, that is being heard by the U.S. Supreme Court this fall following an appeal by the FCC. In that case, the Second U.S. Circuit Court of Appeals called the policy “arbitrary and capricious.”

Family groups were quick to lambaste Monday’s ruling.

“Once again, a three-judge panel has hijacked the will of the American people not to mention the intent of the Congress acting on behalf of the public interest when it comes to indecent content on the public airwaves,”the Parents Television Council said in a statement. “If a striptease during the Super Bowl in front of 90 million people including millions of children doesnt fit the parameters of broadcast indecency, then what does?” First Amendment advocates, on the other hand, praised the court’s dismissal of the fine.

“Perhaps it is time to read the handwriting on the wall: The guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny,” said Ken Ferree, president of the Progress & Freedom Foundation, a free-market group. “A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society.”

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