"Wardrobe malfunction" goes to court

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.”

Janet Jackson (L) reacts as fellow singer Justin Timberlake prepares to tear off part of her costume at the end of their halftime performance at Super Bowl XXXVIII in Houston, February 1, 2004. More than three years after Jackson shook up the Super Bowl halftime show, a federal appeals court will on Tuesday hear the case of her infamous "wardrobe malfunction." REUTERS/Pierre Ducharme

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.

The case is being heard at time when the FCC’s indecency regulations are facing unprecedented challenges.

In June, a federal appeals court in New York invalidated the government’s policy on fleeting profanities uttered over the airwaves. The government is considering whether to take the profanity case to the Supreme Court. At the same time, Congress is working on a legislative remedy.

In New York, the 2nd U.S. Circuit Court of Appeals rejected the agency’s policies on indecent speech by a 2-1 vote. The case involved two editions of the Billboard Music Awards, in which expletives were broadcast over the airwaves.

The court rejected the FCC’s “fleeting expletives” policy on procedural grounds but said it was “skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.”

The U.S. Office of the Solicitor General, which argues cases on behalf of federal agencies, asked for a 30-day extension to decide whether it will appeal that case to the Supreme Court.

In July, the Senate Commerce Committee approved the Protecting Children From Indecent Programming Act, sponsored by Sens. Jay Rockefeller, D-W.Va., and Mark Pryor, D-Ark. The act would require the FCC “to maintain a policy that a single word or image may be considered indecent.”

While the courts look at the constitutional footing of the indecency regulations, the FCC has not proposed a fine since March 2006.

Reuters/Hollywood Reporter