"Wardrobe malfunction" goes to court

By Brooks Boliek

WASHINGTON (Hollywood Reporter) - More than three years after Janet Jackson shook up the Super Bowl halftime show, a federal appeals court will on Tuesday hear the case of her infamous "wardrobe malfunction."

The 3rd U.S. Circuit Court of Appeals in Philadelphia will consider whether the incident in which singer Justin Timberlake ripped Jackson's garment and briefly bared her breast is punishable by the FCC.

After the February 1, 2004, incident, the FCC fined CBS Corp. $550,000 for violating the country's anti-indecency laws. CBS appealed, calling the agency's $27,500 fine for each of the network's owned-and-operated stations "illogical." The network, which was owned by Viacom Inc. at the time, contended that what happened was an accident that couldn't have been foreseen.

"Lacking any evidence to support the initial speculations about network complicity, the commission instead reached the illogical conclusion that the halftime show was designed to 'pander to, titillate and shock the viewing audience' despite the fact that Viacom did not plan the sole part of the performance the FCC says made it indecent, the 'costume reveal'; did not know about it in advance; did not sanction it (and would not have done so had it known); and took steps to prevent anything at odds with broadcast standards," CBS said in its appeal. "But as a matter of simple logic, something cannot be 'designed' without advance knowledge."

If the fine is upheld, it will be the largest ever levied against a television broadcaster. Timberlake blamed a "wardrobe malfunction," and CBS was quick to apologize to viewers. But the incident generated more than a half-million complaints -- the most ever received by the commission at the time.

The FCC, however, contends that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness." The agency also contends that the parent company should have known that trouble was brewing; after all, the production was produced by MTV. At the time, Viacom owned both properties.

"The Viacom organization knew, or surely should have known, what was to come," then-FCC chairman Michael Powell said at the time. "The fact that Viacom promoted the halftime show before it aired as one that would be shocking gives credence to their culpability. Unquestionably, Viacom consciously took the risk and thus now bears the responsibility."

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." While obscene speech is not protected by the First Amendment, indecent speech is as the federal courts and the FCC have ruled that such speech can be safely aired from 10 p.m.-6 a.m.