CBS asks court to overturn FCC fine for ‘wardrobe malfunction’ incident

CBS Corp. should not be fined for the 2004 Super Bowl halftime show that ended with Janet Jackson’s breast-baring “wardrobe malfunction” because the stunt was both fleeting and unauthorized, a lawyer for the company argued Tuesday before the U.S. 3rd Circuit Court of Appeals in Philadelphia.

The network also accused the Federal Communications Commission of applying “mushy” and newly restrictive standards when it fined CBS $550,000 for the half-second of partial nudity.

“The FCC’s new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly with regard to television,” said Robert Corn-Revere, a CBS lawyer who asked the federal appeals court panel to overturn the fine.

Several third parties, including two former FCC chairmen who complained that the agency was engaged in a Victorian crusade, filed briefs in support of CBS.

The FCC, though, called CBS indifferent to the risk that “a highly sexualized performance” might cross the line.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier.

The scene capped a show that featured a crotch-grabbing performance by rapper Nelly

The case is the second recent test of the federal government’s powers to regulate broadcast indecency. In June, a federal appeals court in New York invalidated the government’s policy on fleeting profanities uttered over the airwaves. The case involved remarks made by Cher and Nicole Richie on awards shows carried on Fox network stations.

In a footnote to that ruling, the 2nd Circuit Court noted that President Bush and Vice President Cheney have been quoted using such expletives.

FCC lawyer Eric Miller argued Tuesday that Jackson’s costume reveal, although fleeting, was graphic and explicit. Still images of the moment in question soon made their way around the Internet.

“The idea of an exception for fleeting nudity flies in the face of common sense,” Miller said.

CBS should have been forewarned, especially when Jackson’s choreographer boasted four days earlier that the show would include “some shocking moments,” he argued.

Corn-Revere said the network took many precautions, such as choosing Jackson and Timberlake over more provocative performers, reviewing the script, voicing concerns about ad-libbed remarks and applying a five-second audio delay.

Jackson has said the decision to add a costume reveal -- exposing her right breast, which had only a silver sunburst “shield” covering her nipple -- came after the final rehearsal.

At the time, broadcasters didn’t employ a video delay for live events, which was remedied within a week after the game.

In challenging the fine, CBS said that “fleeting, isolated or unintended” images should not automatically be considered indecent. The agency noted that it has long held that “even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.”

Miller also argued that Jackson and Timberlake were employees of CBS and that the network should have to pay for their “willful” actions.

The 3rd Circuit Court judges didn’t indicate when they would rule. The $550,000 fine represents the maximum $27,500 levied against each of the network’s 20 owned-and-operated stations.