Wardrobe Malfunction Fine Dropped

Four years after the incident, a federal appeals court in Philadelphia threw out the $550,000 fine against CBS for 2004's Super Bowl halftime show breast baring.

The three judges said the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine, going against their standard policies.

Watching the game on television, 90 million people saw Justin Timberlake rip off part of Janet Jackson's top as he sang the line, "Gonna have you naked by the end of this song," in his hit, "Rock Your Body." Jackson later claimed the incident was the result of a "wardrobe malfunction."

The court, however, said the nudity was not egregious enough an offense to warrant punishment by the FCC.

"The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the judges wrote. "Its orders constituted the announcement of a policy change - that fleeting images would no longer be excluded from the scope of actionable indecency."

The FCC's standard policy has been to only sanction images so "pervasive as to amount to 'shock treatment' for the audience." The court ruled the incident was brief enough that it could not be considered so offensive, and by not adhering to its own guidelines, the FCC invalidated their accusation.

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

In the ruling, the court said the FCC would have a stronger case had the show been pre-recorded, but that there was not sufficient evidence that CBS knew the nipple baring would happen to fine them. In preparation for the broadcast, CBS had implemented an audio delay and other measures to prevent unexpected profanity, and "script reviews" and "wardrobe checks" before the show did not reveal any problems, the court said. The FCC, however, challenged that Timberlake and Jackson were CBS employees and the network was responsible for their "willful" actions.

The FCC has not responded to the ruling. CBS, however, issued a statement saying, "We are gratified by the court's decision, which we hope will lead the FCC to return to the policy of restrained indecency enforcement. This is an important win for the entire broadcasting industry, because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material."