Rip-The-Blog Monday | Main | Genuine Shock: New York Times Runs Obama Editorial, Refuses to Run McCain's
July 21, 2008

Federal Court Tosses CBS' "Wardrobe Malfunction" Fine, Calling It Arbitrary and Capricious

Striking a crucial blow against the anti-free-speech censors who for some unenlightened reason things that showing a nipple in a sub-dom sexual context during a general-interest program watched by millions of kids is somehow wrong.

A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring ``wardrobe malfunction.''

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission ``acted arbitrarily and capriciously'' in issuing the fine for the fleeting image of nudity.

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 court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so ``pervasive as to amount to 'shock treatment' for the audience.''

``Like any agency, the FCC may change its policies without judicial second-guessing,'' the court said. ``But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.''

The 3rd Circuit judges - Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes - also ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

``The Commission's determination that CBS' broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy,'' the court found. ``Its orders constituted the announcement of a policy change - that fleeting images would no longer be excluded from the scope of actionable indecency.''

Well, I think it did constitute "shock treatment." The only question is whether or not it matters that CBS was (as I assume) ignorant of Janet Jackson's stunt, or if strict liability applies (that is, they're strictly liable for what they broadcast, whether they have a blameworthy mental state like negligence of intent or not). I don't think that matters -- the court does not seem to rely on that, which would be an easy enough way to dispose of the case -- so they are forced to argue this was harmless to vindicate their far-left politics.


digg this
posted by Ace at 12:41 PM

| Access Comments




Recent Comments
FenelonSpoke: "And another adorable doggy photo: http://tinyur ..."

Bruce: "And the government should handle the money because ..."

Duncanthrax: "[i]I think the performance of the country, given h ..."

FenelonSpoke: "And for the cat people-a kitten who loves to swim ..."

Mr. Peebles: "[i]Who knew that you can willingly give your money ..."

Bruce: "Now this is an NFL Player I can admire: http:/ ..."

Mary Poppins' Practically Perfect Piercing: "[I]Reagan went to a school I never heard of.[/I] ..."

FenelonSpoke: "Now this is an NFL Player I can admire: http:// ..."

Bruce: "Stray dog crashes a wedding and finds his own happ ..."

ScoggDog: "[i]We've been on a path to the middle class disapp ..."

fluffy: "Pennsylvania and 'Jersey morons: ..ENHANCED TH ..."

FenelonSpoke: "Stray dog crashes a wedding and finds his own happ ..."

Recent Entries
Search


MuNuvians
Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
News/Chat
Archives
Powered by
Movable Type 2.64