FCC asks Supreme Court to uphold fine for Super Bowl 'wardrobe malfunction'

The Federal Communications Commission on Wednesday asked the Supreme Court to review whether the FCC has the authority to fine CBS for broadcasting a split-second glimpse of singer Janet Jackson’s bare breast in 2004.

The FCC asked the court to review a ruling that overturned the agency's indecency fine in a case that would also help define the agency’s enforcement of the statutory indecency standard.

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Singer Justin Timberlake famously described the exposure of Jackson’s breast, which lasted less than a second during the 2004 Super Bowl halftime show, as a "wardrobe malfunction."

The FCC fined CBS, the network that aired the show, $550,000 for violating federal prohibitions on broadcast indecency. Last November, a federal appeals court overturned the fine as “arbitrary and capricious," noting the length of the exposure.

The FCC challenged that ruling in the appeal filed this week to the Supreme Court. The Third Circuit, the court that overturned the original fine, denied a rehearing of the case in January.

The petition emphasizes the difference between images and the use of expletives when it comes to the FCC’s judgment on indecency. The FCC’s “indecency rules and policies never included a ‘fleeting nudity’ exception to indecency liability,” the petition reads. “The FCC’s explanation of its own regulatory approach is well supported by the agency’s prior guidance and decisions, as well as the commonsense distinction between words and images.”

Solicitor General Donald Verrilli, in his petition, also asked the court to suspend considering the appeal pending a ruling on another FCC indecency decision that “may shed light on the proper resolution of this case.” The other case, also overturned by a lower court, concerned an indecency fine against Fox for profanity on an awards show.