The Department of Justice and the Federal Communications Commission are asking the U.S. Supreme Court to hear their appeal of a decision overturning the FCC’s fining of 20 CBS stations in the Janet Jackson Super Bowl “wardrobe malfunction.”
In court papers, the agencies are asking the high court to take the Janet Jackson case, but temporarily put it on hold pending a high court ruling on another indecency case.
In June, an appellate court in Philadelphia overturned the FCC’s fining of the stations for the 2004 halftime incident in which Ms. Jackson bared right breast was seen on screen live for a fraction of a second during the highest-rated TV show of the year.
A three-judge panel of the appellate court ruled that the FCC had altered its policy on so-called fleeting images in fining the station, without providing adequate notice. In addition, two of the three judges questioned whether the stations could be fined for something they didn’t know about in advance.
The Supreme Court is already considering an indecency case in which the FCC’s ruling that Cher and Nicole Richie’s comments on two Fox network broadcasts during Billboard Music Awards programs amounted to indecency was overturned by an appellate court in New York.
In a statement, CBS suggested there was no need for the court to take the appeal.
“We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts. Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades.”
(Edited at 12:43 p.m. ET to add last two paragraphs.)