Supreme Court: Reconsider “Wardrobe Malfunction” Fine

If last week’s Supreme Court decision was a blow to Fox, today’s ruling is a setback for CBS.

The Supreme Court ordered a federal appeals panel reconsider a ruling that threw out a $550,000 fine against CBS for Janet Jackson’s infamous “wardrobe malfunction” at the Super Bowl half time show in 2004.

The court directed the Third Circuit Court of Appeals in Philadelphia to reexamine the case, after the appellate panel said last June the FCC had not justified its fines because it had previously “explained that isolated or fleeting material did not fall within the scope of actionable indecency.” The appellate court also questioned whether the actions of Jackson and Justin Timberlake could be blamed on CBS.

The high court ordered the reconsideration of the case in light of its ruling last week that upheld the FCC’s ability to sanction the networks for “fleeting content,” meaning that even one-time uses of swear words on live television can be subject to punishment. The case stems from two Fox broadcasts of the Billboard Music Awards in 2002 and 2003. Nevertheless, the Supreme Court decided the case on procedural grounds, and left it up to a lower court to consider the constitutionality of the policy.

Creatives argue that all of these decisions put a “chilling effect” on Hollywood, particularly if networks don’t quite know when or if they will be slapped with fines, their decisions will be to play it safe. But there is a legal path that actually could lead to a diminishment of the FCC’s authority over regulating content overall, as we write in this week’s Weekly Variety. The only question is whether the networks will pursue such a high stakes legal road.

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