Supreme Court Sends 'Wardrobe Malfunction' Case Back to Lower Court

May 4, 2009— -- The Supreme Court today ordered a lower court to revisit the case of pop singer Janet Jackson's so-called "wardrobe malfunction" in which she inadvertently exposed her breast during the 2004 broadcast of a Super Bowl halftime show.

The Federal Communications Commission had fined CBS, the show's broadcaster, $550,000, and found that the show was indecent because it depicted a sexual organ for nine-sixteenths of one second.

Nearly 90 million viewers watched the performance of "Rock Your Body" by Jackson and singer Justin Timberlake. CBS challenged the fine, arguing that such fines by the FCC could chill the free speech of broadcasters.

A lower court threw out the FCC's finding.

The high court took today's action because it ruled last week in a similar case that the FCC had acted within its authority to fine broadcasters for the airing of so-called "fleeting expletives" uttered on live television.

In last week's case, the divided Supreme Court stopped short of ruling the larger constitutional question, saving that for another day.

The Supreme Court said the FCC had been "entirely rational" when it changed its policy to ban even the fleeting use of an expletive on broadcast television, but declined to rule on whether the ban violated the broadcasters' constitutional rights.

The case from last week resulted from celebrities, such as Cher and Bono, uttering "fleeting expletives" on national television. The FCC changed its policy to include such utterances within the definition of indecent material.

Broadcast networks, including ABC, had argued that the FCC was wrong to change its policy and that such a change would chill broadcasters' protected speech.

In the past, the FCC had allowed broadcasters some isolated incidents of "fleeting expletives," but after celebrity slip-ups, it changed its policy.

Writing for the 5-4 majority, Justice Antonin Scalia hinted it was "conceivable" that in the future the FCC may "cause some broadcasters to avoid certain language that is beyond the commission's reach under the Constitution," but he wrote, "we decline to address the constitutional questions at this time." The case was sent back to the lower court to take a first stab at the issue.