WASHINGTON — Janet Jackson's brief, provocative dance during the 2004 Super Bowl halftime show lasted long enough to trigger more than half a million formal complaints to regulators, tougher indecency rules, dramatically higher maximum fines and video delays on many live programs.
But an appeals court panel ruled Monday that the flash of Jackson's right breast for 9/16ths of a second was too quick to warrant the $550,000 fine levied by the Federal Communications Commission against CBS Corp. for airing it.
The ruling was another blow to FCC Chairman Kevin J. Martin's tough indecency policies, which broadcasters have fought aggressively in the courts.
Last year, a different appellate panel struck down the FCC's near zero-tolerance policy on some expletives, even when they are isolated and impromptu, instituted in the wake of the Jackson incident. The Bush administration appealed and the Supreme Court will hear the case on so-called fleeting expletives this fall.
The decision Monday by a three-judge panel of the U.S. 3rd Circuit Court of Appeals in Philadelphia to put an unscripted flash of nudity in the same legal category as a fleeting expletive raises the already high stakes of the Supreme Court decision. That ruling will be crucial because the FCC's indecency rules have been in legal limbo for more than two years, forcing thousands of complaints to pile up.
"I continue to believe that this incident was inappropriate, and this only highlights the importance of the Supreme Court's consideration of our indecency rules this fall," Martin said of the Jackson episode, adding he was "surprised" by the ruling and "disappointed for families and parents."
But broadcasters and free-speech advocates praised the court decision. "It's slapping the FCC in the face . . . and they deserve to be slapped in the face because they are violating the 1st Amendment," said Paul Levinson, chairman of Fordham University's department of communications and media studies.
In a statement, CBS said the ruling was "an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts."
