A federal appeals court will see whether a notorious "wardrobe malfunction" that bared singer Janet Jackson's right breast for an instant during a televised 2004 American football halftime show was indecent or merely a fleeting and accidental glitch that should not have been punished.
The case is the second recent test of the federal government's powers to regulate alleged indecency on broadcast television. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.
The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments about the Feb. 1, 2004, halftime show when 90 million Americans watched singer Justin Timberlake pull off part of Janet Jackson's bustier, briefly exposing her breast. The episode was later explained as a problem with her costume.
The FCC fined CBS Corp. $550,000 (398,695 EUR). CBS challenged the fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."
The case is being argued at a time when the Federal Communications Commission's enforcement regime regarding broadcast indecency is in a state of flux. The government is considering whether to take the profanity case to the U.S. Supreme Court. At the same time, Congress is working on a legislative remedy.
The agency is hoping it will fare better in Philadelphia than it did in New York.
In that case, the 2nd U.S. Circuit Court of Appeals rejected by a 2-1 vote the agency's polices on indecent speech. The case involved two airings of the "Billboard Music Awards," in which expletives were broadcast over the airwaves.
The court rejected the FCC's policy on procedural grounds but was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."
The U.S. Office of the Solicitor General, which argues cases on behalf of federal agencies, asked for a 30-day extension to decide whether it will appeal that case to the U.S. Supreme Court.
Meanwhile, in July, the Senate Commerce, Science and Transportation Committee approved the "Protecting Children from Indecent Programming Act," sponsored by Democratic Sens. Jay Rockefeller and Mark Pryor. The act would require the FCC "to maintain a policy that a single word or image may be considered indecent."
Such a law would encompass both lawsuits neatly. But should it pass, it would not be retroactive. The American Civil Liberties Union said the bill "could have serious and damaging effects on the First Amendment," which protects among other personal freedoms free speech. A companion bill is said to be in the works in the House of Representatives.
With Congress occupied by Iraq and other pressing issues, it is hard to say whether the bill will become law, but it has bipartisan support, and Congress has been eager to pass tough broadcast indecency laws in the past.
Regardless, indecency enforcement at the Federal Communications Commission is in a holding pattern. The FCC has not proposed a fine since March 2006.
"There are still hundreds of thousands of indecency complaints languishing at FCC," said Dan Isett, director of Corporate and Governmental Affairs for anti-indecency crusader the Parents Television Council. "A great deal of them have nothing to do with fleeting profanity."
As it stands, the FCC must look to its previous standard on unsavory language, which requires that context be considered. The word must be a description of "sexual or excretory activities" to bring a fine.
Despite the lack of action at the FCC, television programmers say they are being cautious. The Public Broadcasting System, for example, says it is providing its member stations with two versions of Ken Burns' World War II documentary this fall, one with profanities, one without.
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