A federal appeals court last November ruled in favor of the network and its affiliates, saying the Federal Communications Commission’s sanctions were improper. The agency had punished the network with a $550,000 fine after the pop singer’s breast was briefly exposed during a live halftime show with Justin Timberlake at the 2004 Super Bowl.
The Supreme Court is currently deciding a separate but related issue over whether FCC enforcement policies violate the free speech rights of broadcasters airing profanity and sexual content, both in live and scripted form.
The Justice Department in its appeal over the Janet Jackson incident told the high court there is no “fleeting images exemption from indecency enforcement” and that the singer’s act was “shocking and pandering,” airing “during a prime-time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity.”
But CBS countered that the government in recent decades has applied inconsistent rules to indecent words and images, punishing some instances and ignoring others. The three-judge Philadelphia-based 3rd Circuit U.S. Court of Appeals agreed, finding for a second time the FCC had acted “arbitrarily and capriciously,” since the commission did not give the media companies proper prior warning about subsequent changes in its enforcement policies.
