The federal agency fined CBS Corporation television stations $550,000 for airing the “wardrobe malfunction” that exposed singer Janet Jackson’s breast during the 2004 Super Bowl halftime show. The Third Circuit had previously thrown out the fine, but the Supreme Court remanded the case for reconsideration following their ruling on the fleeting material policy in Fox v. FCC. The Third Circuit re-affirmed its decision in a 2-1 split. Robert Corn-Revere argued the case for CBS.
Writing for a 2-1 majority, 3rd Circuit Judge Marjorie Rendell said the FCC had for three decades maintained a “consistent refusal” to treat fleeting nude images as indecent, and that there was no justification to change policy for CBS.
She said FCC regulations governing indecency treat images and words interchangeably, and that “it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike.”
Judge Anthony Scirica dissented, saying the Fox opinion “undermines” the 2008 decision in the CBS case, which he had written. He said the CBS case should be sent to the FCC so it could apply the proper standards.
The Supreme Court is expected in its current term to decide whether the FCC policy is constitutional.
The full opinion can be read here.