CBS warns of censorship if bare breast edict stays

PHILADELPHIA (Reuters) - The U.S. penalty on CBS for televising singer Janet Jackson's breast during the 2004 Super Bowl halftime show will effectively censor U.S. broadcasting if it is upheld, the network argued on Tuesday.

CBS lawyer Robert Corn-Revere urged the Third U.S. Circuit Court of Appeals to overturn a $550,000 fine imposed by the Federal Communications Commission for indecency after Jackson's right breast was exposed to almost 90 million TV viewers for a fraction of a second.

The court is expected to rule in the coming months.

The network called the incident "unscripted, unauthorized and unintended," and Corn-Revere said the ruling has had a "profoundly censorious effect" on U.S. broadcasting by deterring stations from showing material that could possibly be judged indecent.

Eric Miller, an attorney for the FCC, defended the conclusion that the Super Bowl show was indecent because it was a "highly sexualized performance" even before the exposure.

Singer Justin Timberlake was performing with Jackson when he tugged open her top, revealing Jackson's breast with the nipple obscured by jewelry.

Timberlake later called it a "wardrobe malfunction."

Miller argued CBS had been "willful" in its broadcast because it failed to guard against indecency. He said the National Football League had expressed concern beforehand about the song's sexual lyrics and that Jackson's choreographer said in advance the show would contain "some shocking moments."

"CBS was indifferent to the fact that an obvious risk can constitute a deliberate omission," Miller said.

But Julio Fuentes, one member of the three-judge panel, challenged Miller's assertion that Jackson and Timberlake were "employees" of CBS who were subject to the network's control.

"That doesn't make sense at all," Fuentes said. "They were not employees of CBS, were they?"

CBS immediately apologized and said both Jackson and Timberlake had confirmed they planned it "independently and clandestinely" without informing anyone, the document said.

CBS said that by fining the network the FCC had abandoned a policy of avoiding penalties for "fleeting" or "isolated" images and expletives that might violate indecency rules.

The network also argued that the FCC violated the protection of free speech in the U.S. Constitution's First Amendment, which allows speakers "breathing space."

But the FCC said the government has a "compelling interest" to protect children from indecent material on the airwaves during times when they are likely to be watching.