Once Again Court Says FCC Can't Fine Janet Jackson For Wardrobe Malfunction
from the fleeting-fcc-rules dept
A few days late on this one (just didn’t have the time to get to it last week), but the 3rd Circuit appeals court did pretty much exactly what most people expected in rejecting the FCC’s fine of CBS for Janet Jackson’s famous “wardrobe malfunction” during the 2004 Super Bowl. As we’ve been covering, the FCC (mainly under the Kevin Martin regime) tried to crack down on “indecency” with some questionable fines, all of which have been thrown out one by one. There was the fleeting expletives case and the Charlotte Ross’s naked butt case, both of which ended up with the FCC losing, so this latest ruling wasn’t much of a surprise.
The FCC had already lost this case for its rules being “arbitrary and capricious,” but the Supreme Court had asked the court to reconsider its ruling, following the fleeting expletives ruling. However, the court here points out that, basically, nothing in that ruling changes anything about how the court feels about the wardrobe malfunction, and (if anything) it just reinforces the position it already took. The interesting thing, however, may be that the earlier decision was unanimous — and the judge who wrote that decision, Anthony Scirica, actually changed his mind on the case this time around. He dissented, while the others on the panel upheld their earlier ruling, arguing that the FCC’s claim that while its “fleeting expletives” policy had changed, it’s position on nudity had never changed, was not at all compelling. The dissent, from Scirica, more or less buys the FCC’s claim that broadcasters give up 1st Amendment rights and also argues that there’s no evidence of a real policy change here.
Either way, this triumverate of cases may not be complete yet as the Supreme Court is expected to weigh in again on these cases on the First Amendment question (separate from the ‘arbitrary and capricious’ question). So, fear not, we’ll still have more to talk about with all of these cases…