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

Supreme Court ruling in line with last week's decision on "fleeting expletives."

May 4, 2009, 1:32 PM

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.

FCC Ban Unconstitutional?

Justices Anthony Kennedy and Clarence Thomas indicated in their concurring opinions that on the larger question, they might side with the more liberal members of the court and find the FCC ban unconstitutional.

"If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances," Kennedy wrote.

Justice Steven Breyer, writing in dissent, said that the FCC had failed to "adequately" explain why it changed its indecency policy from permitting a single "fleeting use" of an expletive to a policy that made no such exception.

The Fox Broadcasting Co. issued a statement saying, "While we would have preferred a victory on Administrative Procedure Act grounds, more important to FOX is the fundamental constitutional issues at the heart of this case."

The broadcaster said Fox is "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

In 2002, singer Cher said on a live broadcast of the Billboard Music Awards, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f--- 'em."

In 2003, in another segment of the awards broadcast on live television, Nicole Richie made reference to her Fox television series, "The Simple Life," by saying, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

Following the broadcast of the expletive, the FCC received complaints from parents across the country and changed its policy.

Today, Justice John Paul Stevens, writing in dissent, disagreed with the FCC's policy. "Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin."

For now, the case will be sent back to the lower court, which could address the constitutional question regarding the broadcaster's rights under the First Amendment.

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