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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.


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posted by Ace at 12:41 PM

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