Court throws out 'wardrobe malfunction' fine

Justin Timberlake in front of an image of himself and Janet Jackson at the 2004 Super Bowl. (Kevin Winter/Getty Images)

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

The three-judge panel of the 3d US 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 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 judges 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's 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."

In a statement, CBS said it hoped the decision "will lead the FCC to return to the policy of restrained indecency enforcement it followed for decades."

The FCC did not immediately respond to a request for comment.

Tim Winter of the watchdog organization Parents Television Council said the court's decision "borders on judicial stupidity."

"If a striptease during the Super Bowl in front of 90 million people - including millions of children - doesn't fit the parameters of broadcast indecency, then what does?" Winter said.