The Supreme Court refused to take up the FCC’s effort to reinstate sanctions on CBS stations for the Janet Jackson “wardrobe malfunction” at the 2004 Super Bowl halftime show, but Chief Justice John Roberts gave credence to the agency’s authority to fine broadcasters for such infamous “fleeting” images.
Last week, the high court struck down the FCC’s rulings against Fox and ABC for such fleeting expletives and images, but over the procedural issue of when the agency changed its policy to punish even momentary expletives. The rationale was on the narrow grounds that the networks were not aware that the FCC’s policy changed in 2004, but the incidents occurred before then.
Roberts said that in light of the ruling, ruling on the Janet Jackson case was “moot.” The 3rd Circuit Court of Appeals struck down the FCC’s $550,000 in fines on CBS stations for the Janet Jackson incident, ruling that it was an “arbitrary and capricious” agency action.
In a two page concurring opinion attached to the high court’s refusal to hear the Janet Jackson case, Roberts made a distinction between fleeting expletives and fleeting images. While the FCC, until 2004, made a “limited exception” for fleeting expletives, the “agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not,” Roberts noted.
“As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children,” he wrote.
In writing the opinion, Roberts seemed to be sending a warning sign to the networks that the FCC’s policy now had some clarity.
“It is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure,” he wrote, adding, “Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.”
Roberts also got in a dig at Jackson and Justin Timberlake, who tore away a portion of Jackson’s bustier and revealed her breasts.
“The performers subsequently strained the credulity of the public by terming the episode a ‘wardrobe malfunction,'” Roberts wrote.
Tim Winter, president of the Parents Television Council, expressed “disppointment” that the court did not take the case, but said they were “grateful for the statement issued by Chief Justice John Roberts that broadcasters have now been issued fair warning.”
Update: CBS issued this statement. “We are gratified to finally put this episode behind us. It’s been more than eight years since we expressed deep regret for the Super Bowl halftime show. As observers of this issue are aware, at that time we took immediate steps to implement delays on all live entertainment programs so that we could safeguard against similar incidents of unintended and spontaneous snippets of live broadcasts. Since then, all we ever sought was an affirmation of the long established policy of balanced, consistent and deliberate indecency enforcement the FCC had followed for decades before the incident. At every major turn of this process, the lower courts have sided with us. And now that the Supreme Court has brought this matter to a close, we look forward to the FCC heeding the call for the very balanced enforcement which was the hallmark of the Commission for many, many years.”