Wardrobe Malfunction Back in Court: An Update

While the display of Janet Jackson’s naked breast and nipple during a 2005 CBS broadcast of the Superbowl may have been fleeting, the legal ramifications stemming from the incident are anything but.

Last time we covered this case (here and here) the Supreme Court had vacated the Third Circuit Court of Appeals’ 2007  decision in the matter of FCC v. CBS, the lawsuit that resulted from Ms. Jackson’s broadcasted “wardrobe malfunction”, and sent the case back down to the Third Circuit Court of Appeals for consideration in light of the Court’s 5-4 decision in companion case FCC v. Fox.

The Court ordered the 3rd  Circuit to review the case and re-decide it in light of the majority holding in Fox, which found that the FCC had not been arbitrary or capricious in determining that these fleeting incidents of profane language were finable offenses.  Now the question is whether the same standard can be applied to fleeting nudity.

Since receiving the order in May 2009, the 3rd Circuit has received supplemental briefs from both the FCC and CBS, as well as amici briefs (i.e. friend of the court briefs, submitted by parties not involved in the litigation, but nevertheless interested in the case’s outcome).

CBS, in its most recent round of briefs, contends that the court got it right in 2007, and that the holding in Fox should not be applied to this case because nude images and spoken profanity are two different animals and in the past the FCC has differentiated in its regulation between indecent images and profane language.   While the FCC’s decision to fine Fox over fleeting expletives represented the agency’s move to crackdown on spoken indecency, less is known about the agency’s stance on indecent images, because as “CBS’s lawyers argue, the FCC never acknowledged in the 3rd Circuit case that it had adopted a change in policy for policing indecent images.”

As a consequence, broadcasters don’t know what images they can get away with showing.  An amicus brief submitted by Fox in support of CBS explained, “The FCC’s new approach is unquestionably chilling constitutionally protected speech…significant broadcasts have been canceled or delayed out of fear of enormous indecency fines.”

Proponents of free expression hope that the 3rd Circuit will decide this case in a manner that not only eliminates this chilling effect, but also finds that singular incidents of fleeting indecent images fall squarely within the domain of First Amendment protected expression.  A decision like that would ‘nip’ broadcast censorship in the bud, as it were.

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This entry was posted in Jennifer Liebman: Author and tagged , , , . Bookmark the permalink.

2 Responses to Wardrobe Malfunction Back in Court: An Update

  1. Pingback: One Naked Boob = $550,000 « Sex Hysteria!

  2. Pingback: Second Circuit Strikes Down FCC Regulations on Fleeting Expletives on Constitutional Grounds « Blogging Censorship

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