Overturn Super Bowl ‘wardrobe malfunction’ fine, CBS tells court here
A lawyer for CBS this morning urged a federal appeals court in Philadelphia to overturn a $550,000 fine the FCC levied against the network for the "wardrobe malfunction" in which singer Janet Jackson's breast was exposed during the 2004 Super Bowl halftime show.
A lawyer for CBS this morning urged a federal appeals court in Philadelphia to overturn a $550,000 fine the FCC levied against the network for the "wardrobe malfunction" in which singer Janet Jackson's breast was exposed during the 2004 Super Bowl halftime show.
"The FCC's new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly with regard to television," said CBS lawyer Robert Corn-Revere.
The appeals court is reviewing an FCC ruling last year that CBS says narrows networks' freedom of expression under the First Amendment. The First Amendment must allow "breathing room" for brief, unintentional indecent images, CBS lawyers said. In addition, the network said, it's unfair to punish CBS based on a policy created after the incident.
CBS said in its briefs that it should not be held responsible for an incident that was an "unscripted, unauthorized and unintentional long-distance shot of Ms. Jackson's breast for nine-sixteenths of a second."
Corn-Revere told the court that such an incident is unlikely to happen in the future because the network now uses a video-delay machine, which was invented after the incident.
Timberlake has said that the "wardrobe malfunction during the halftime performance was not intentional" and that he didn?t know his partner would reveal her breast. Jackson has said the "decision to have a costume reveal was made after final rehearsals."
Eric D. Miller, a lawyer for the FCC, argued that the 100 million viewers of the halftime show included millions of children who should not have been exposed to such "graphic and explicit" material.
The incident was not innocent, he said. Miller argued that CBS should have known that such an incident might take place, given the sexual nature of the performance.
The FCC lawyer noted that Timberlake pulled off part of Jackson's clothing to reveal her breast after he sang, "Gonna have you naked by the end of this song."
He also rejected the network?s argument that the First Amendment must include breathing room for brief mistakes.
"The idea of an exception for fleeting nudity flies in the face of common sense," Miller said.
The three-judge panel considering the case consists of Chief Judge Anthony J. Scirica of Pennsylvania and circuit judges Marjorie O. Rendell of Pennsylvania and Julio M. Fuentes of New Jersey.
The Second Court of Appeals in Boston recently overturned a similar indecency ruling by the FCC related to profanity during a live broadcast of the Golden Globe Awards.
Expecting a large crowd, the panel met in the court's ceremonial courtroom. The room, which holds about 200 people, was about two-thirds full.
The judges denied a request by C-Span to televise the proceedings.
