Janet Jackson’s infamous “wardrobe malfunction” case is still not over. After six years of legal wrangling and one Supreme Court review of the case, CBS argued last week that it should not be held responsible for the half-second of nudity.
The 3rd Circuit Court of Appeals in Philadelphia had thrown out the FCC’s $550,000 fine against CBS as arbitrary, only to have the U.S. Supreme Court return it to a lower court for review.
The FCC argued last week that CBS was duly warned that its 2004 halftime performers might add some shock value to the act. Jackson’s choreographer had promised as much, FCC lawyer Jacob Lewis said. During the act, singer Justin Timberlake ripped off Jackson’s bustier, exposing her breast for nine-sixteenths of a second.
“There were considerable alarm bells about deviating from the script,” Lewis told the 3rd Circuit panel. “CBS had a duty to investigate.”
CBS complained that the FCC had previously applied the same decency standards to words and images — and excused fleeting instances of both.
Judge Marjorie Rendell seemed to agree, noting that the FCC could have stated in its rules that nudity was another thing entirely from bad language. “[The FCC] had the opportunity to say nudity is different. They didn’t,” she said. “I’m trying to figure out how CBS or anyone else can be put on notice...when the FCC does not draw any distinction at all between the two fleeting things.”
The three-judge panel is the same one that heard CBS’ original appeal of the FCC fine. They found for the network in 2008. The judges could remand the CBS case to the FCC for more fact-finding. They did not indicate when they would rule.