A picture may be worth a thousand words, but apparently, it’s not worth a half million bucks.
While we’re all still waiting for the U.S. Supreme Court to hear oral argument in the F.C.C. v. Fox case later this term (see earlier posts here & here), we finally have an answer to a related question concerning alleged indecency in broadcasting: Nearly eight years after Janet Jackson’s infamous wardrobe malfunction at Super Bowl XXXVIII, the Third Circuit Court of Appeals has ruled that the Federal Communications Commission (FCC) acted arbitrarily when it fined CBS more than half a million dollars over Jackson’s partially exposed breast.
The issue in this wardrobe malfunction-case is closely intertwined with the issue in Fox—i.e. whether the FCC’s punishment of the networks for brief and spontaneous (“fleeting”) indecency was a departure from the indecency rules that were in place already at the time these incidents took place. If so, the FCC’s rules were operating ex post facto, which is a Latin phrase given to penal laws that are applied retroactively (ex post facto laws are prohibited by Article I, section 9 of the U.S. Constitution). Since we’re not dealing with criminal law here, the issue is due process, which requires that parties receive fair notice of all rules or laws before the government can deprive them of property.
The difference between this case and the Fox case is the subject matter of the indecent material. In Fox, the objectionable material was merely the word fuck; here, we’re dealing with nudity, albeit partial and brief.
CBS contends the FCC‘s indecency regime treated words and images alike, so the exception for fleeting material applied with equal force to words and images. The Commission rejects this assertion, contending its prior policy on fleeting material was limited to words alone. Although the FCC acknowledges it had never explicitly distinguished between images and words for the purpose of defining the scope of actionable indecency, it contends the existence of such a distinction was obvious, even if unstated.
But the federal appeals court found too many inconsistencies in the manner in which the FCC had chosen to enforce its indecency regulations, which led the court to conclude that CBS didn’t have adequate notice that they would be fined for the so-called wardrobe malfunction. [download the court's decision PDF]. The irony, however, is that it wouldn’t have mattered if CBS had prior notice of the rule, because they claim that they didn’t plan the incident. If CBS was only the messenger, so to speak, should they be the ones who are punished for the actions of performers who appear (live) on their network?