Super Bowl wardrobe malfunction saga ends: Supreme Court refuses appeal

It was the breast seen round the world.

Pop stars Janet Jackson and Justin Timberlake were dancing and singing in a choreographed live show at half time of the Super Bowl in February 2004.

While singing the words, “gonna have you naked by the end of this song,” Mr. Timberlake reached toward Ms. Jackson and pulled off the right side of her bustier, exposing her breast.

The nudity was brief – a mere 9/16th of one second of air time – but the exposure was gigantic, with more than 89 million people watching.

Many surprised viewers (including this correspondent) rubbed their eyes in disbelief, wondering whether they really saw what they thought they saw. Others were dead certain what they’d seen and were outraged. Complaints flooded into the Federal Communications Commission.

After an investigation, the FCC decided that the so-called wardrobe malfunction was no accident. The agency fined CBS $550,000.

(To put the fine in context, CBS charged $2.3 million for each 30-second advertising spot during the 2004 Super Bowl.)

CBS disputed the FCC conclusion that the half-time incident violated the agency’s policy on broadcast indecency.

Lawyers argued that the company had not been given fair notice of an FCC crackdown against broadcasts of brief images of nudity during prime time.

They said for years the FCC had made an exception for fleeting expletives broadcast accidentally during prime time. They assumed the same exception applied to fleeting images of nudity.

A panel of the Philadelphia-based Third Circuit Court of Appeals agreed with CBS, ruling that the FCC had failed to give fair warning that it would take enforcement action for fleeting nudity on television in prime time.

The FCC disagreed and took its case to the US Supreme Court.

On Friday, the high court effectively ended the eight-year battle over the wardrobe malfunction by declining to hear an appeal by the FCC seeking to reinstate the enforcement order and $550,000 fine.

In a statement concurring in the court’s decision not to hear the case, Chief Justice John Roberts said he did not necessarily agree with the lower-court decision erasing the fine.

“As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children,” he said.

Regardless of past actions, the FCC’s policy going forward is unambiguous, Chief Justice Roberts said. “It is now clear that the brevity of an indecent broadcast – be it word or image – cannot immunize it from FCC censure,” he said.

“Any future wardrobe malfunctions will not be protected on the ground relied upon by the court below,” he said.

Justice Ruth Bader Ginsburg included a brief note of her own suggesting that the FCC might reconsider its strict indecency policy in light of the continued emergence of cable television and Internet programming, as well as free-speech concerns.

The case was FCC v. CBS (11-1240).