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Once Again Court Says FCC Can't Fine Janet Jackson For Wardrobe Malfunction

from the fleeting-fcc-rules dept

Mon, Nov 7th 2011 4:07pm — Mike Masnick

A few days late on this one (just didn't have the time to get to it last week), but the 3rd Circuit appeals court did pretty much exactly what most people expected in rejecting the FCC's fine of CBS for Janet Jackson's famous "wardrobe malfunction" during the 2004 Super Bowl. As we've been covering, the FCC (mainly under the Kevin Martin regime) tried to crack down on "indecency" with some questionable fines, all of which have been thrown out one by one. There was the fleeting expletives case and the Charlotte Ross's naked butt case, both of which ended up with the FCC losing, so this latest ruling wasn't much of a surprise.

The FCC had already lost this case for its rules being "arbitrary and capricious," but the Supreme Court had asked the court to reconsider its ruling, following the fleeting expletives ruling. However, the court here points out that, basically, nothing in that ruling changes anything about how the court feels about the wardrobe malfunction, and (if anything) it just reinforces the position it already took. The interesting thing, however, may be that the earlier decision was unanimous -- and the judge who wrote that decision, Anthony Scirica, actually changed his mind on the case this time around. He dissented, while the others on the panel upheld their earlier ruling, arguing that the FCC's claim that while its "fleeting expletives" policy had changed, it's position on nudity had never changed, was not at all compelling. The dissent, from Scirica, more or less buys the FCC's claim that broadcasters give up 1st Amendment rights and also argues that there's no evidence of a real policy change here.

Either way, this triumverate of cases may not be complete yet as the Supreme Court is expected to weigh in again on these cases on the First Amendment question (separate from the 'arbitrary and capricious' question). So, fear not, we'll still have more to talk about with all of these cases...

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Filed Under: arbitrary and capricious, fcc, first amendment, janet jackson, obscenity
Companies: cbs

31 Comments

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S, 7 Nov 2011 @ 4:33pm

Cautiously optimistic
The FCC's near-fanatical obsession with this kind of thing is just a waste of everyone's time; it's good to see them losing repeatedly.
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Bergman (profile), 7 Nov 2011 @ 4:45pm

So...how precisely would a TV news company give up their first amendment rights, in particular the ones that guarantee freedom of the press, simply by broadcasting? If they didn't broadcast, no one would ever see their free speech.
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Anonymous Coward, 7 Nov 2011 @ 4:55pm

Parent Television Council
I bet the Parent Television Council is infuriated right now!
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Anonymous Coward, 7 Nov 2011 @ 4:58pm

Re: Parent Television Council
And I was right! http://www.parentstv.org/PTC/news/release/2011/1102.asp
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Anonymous Coward, 7 Nov 2011 @ 5:11pm

Response to: Bergman on Nov 7th, 2011 @ 4:45pm
Not that I agree....

But I believe the FCC feels that the airwaves are a public resource that they control and when you purchase the right to use said public resources you also agree to give up certain rights.
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PRMan, 7 Nov 2011 @ 5:38pm

I've said it before...
And I'll say it again...

If they want to rate the Super Bowl TV-MA, that's fine. But then I won't be watching it. Otherwise, have content appropriate for a family show.
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tm, 7 Nov 2011 @ 5:39pm

Boobs don't bother me and I don't think there should have been a fine but "wardrobe malfunction"? I just watched the video again and I think I'll believe my eyes instead of the word of someone else.
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Phalamir (profile), 7 Nov 2011 @ 6:02pm

Re: I've said it before...
So, "family show" is defined as a bunch of men engaging in pretty blatant homo-erotic S&M play, while women are shown on the sidelines doing routines that most of these municipalities forbid for strip-clubs"? But a nipple is so explicitly over the top, that the world ends? Unless you are using the sheet-with-a-hole method, the nipple was involved in the creation of the family - and was probably used in the rearing of the family (unless you also believed that your kid must be the sole supporter of the dairy industry). Please explain in non-retard-speak how the nipple is not family oriented, but intentional violence (with Spartacus-levels of homoerotism) and hootchie-girls is pure, chaste family embodiement
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Digitari, 7 Nov 2011 @ 6:14pm

RE: PTC
can we get a DMCA take down for this site, PLEASE?????????????????????????????
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Anonymous Coward, 7 Nov 2011 @ 7:43pm

i for one hope they find that the broadcasters gave up there rights to free speech and the first amendment. then maybe all these news channels can stop lying putting spin on the news.
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Prudish Americans, 7 Nov 2011 @ 7:46pm

Re: I've said it before...
A boob. No I am not talking about an AC although the term fits.

Boobies, breasts, Tatas, mammories. Big deal. Oh my kids might... Family... Blah blah blah. So silly. Other countries laugh at us. War violence, sports violence, the daily news, thousands of ads with women in just about nothing. But G forbit if a tit falls out, or an f-bomb gets dropped. Mixed messages much? So silly.

At least it was fit Janet and not fat Janet. I would have looked either way though. :)
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Anonymous Coward, 7 Nov 2011 @ 9:27pm

Re: Re: Parent Television Council
Oh no, now all those terrible parents will have to spam more letters instead of parenting.
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Anonymous Coward, 8 Nov 2011 @ 12:08am

Re: Re: I've said it before...
Well said.

I always found it highly amusing to get looks from idiots like PRMan when my wife breastfed in public places. I'd just stare challengingly at the imbeciles and dare them to say something about one of the most natural things on earth.

Suffice to say these Internet cowards never dared actually say anything in person.
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The Devil's Coachman (profile), 8 Nov 2011 @ 4:28am

Re: Re: Re: Parent Television Council
Maybe it will cut down on the child abuse some, too?
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The Devil's Coachman (profile), 8 Nov 2011 @ 4:33am

Re: Re: Re: Parent Television Council
Maybe it will cut down on the child abuse some, too?
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PaulT (profile), 8 Nov 2011 @ 4:35am

Re: I've said it before...
Yes, nipples! Those things that everybody has on their own bodies and 50% of the population have (or will have) on breasts. Breasts!

I'll bet you're one of those idiots who has no problem letting your kids see people get robbed and shot on prime time TV, but think that a part of the human body must be evil. You're and idiot, and the rest of the world laugh at you for things like this.
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Anonymous Coward, 8 Nov 2011 @ 4:39am

They should fine the TV station and the label for being accomplices, showing porn to kids is not legal is it?

I'm pretty sure somewhere in the world someone made it illegal for some reason and so they are criminals and should be punished and extradited to that jurisdiction to see justice serve.
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PaulT (profile), 8 Nov 2011 @ 4:50am

Re:
"showing porn to kids is not legal is it"

A split second viewing of a nipple is porn to you? How can you operate a computer from a 16th century monastery?
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Anonymous Coward, 8 Nov 2011 @ 4:51am

Re: Re: I've said it before...
I do wonder how Spartacus got greelighted to appear in free over the air TV though.

That thing is hardcore porn. Not that I care I'm just surprised people accept that as normal and get all pumped up about a wardrobe malfunction, the good thing is that they are going after the entertainment industry and will help them hang themselves with the same ropes they are trying to use to hang others.

Third party liability will be a bitch to pay in this occasions.

Any musician that dares to do something out of line will have their labels and business partners forced to drop business with them, oh that would be funny.
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Anonymous Coward, 8 Nov 2011 @ 6:20am

Re:
And why is everyone always blaming Janet as if JT didn't yank on that thing? /sigh
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Anonymous Coward, 8 Nov 2011 @ 7:53am

Re:
And yet, Nancy Grace gets a free pass? Her's was WAAAAY more out there.

http://www.tmz.com/2011/09/27/nancy-grace-nipple-slip-dancing-with-the-stars-nip-boob-breast-den ial-petals-sticky-pasties/

Yet, no uproar from FCC, or parents, or tm?
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Anonymous Coward, 8 Nov 2011 @ 8:42am

As a parent I am concerned that my child can't even watch sporting events without be subjected to lewd language, bare bums, and nearly nipples. No one can convince me that this wasn't staged by the production company.

The fine was meant to send a message to the other networks, now what message is being sent? As parents I think it's time we fight back..with out wallets, that's the only thing these corporations understand. I really don't care what they show on CBS at midnight - my child does not watch television then. But, in the middle of a nationally televised sporting event it is inappropriate to expose yourself. Foul lanague should be resevered to late night programming as well.
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Chosen Reject (profile), 8 Nov 2011 @ 10:08am

Re: Response to: Bergman on Nov 7th, 2011 @ 4:45pm
Makes perfect sense. If you go to the actual 1st amendment:
Congress shall make no law ... abridging the freedom of speech, or of the press...
See, the FCC, while part of the government, is obviously not congress. So it's OK that a government entity forces you to give up rights while using public resources so long as it's not congress doing it.

Now excuse me while I go sit down in the Madison Family Cemetery. I like to listen to the hum of James as he spins in his grave.
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Anonymous Coward, 8 Nov 2011 @ 10:11am

Re:
As a parent, did you ever force your very young child to perform a sexual act on your wife (or yourself if you are the mother)? After all judging from your post you think of the human breast as a thing of depravity that children should be protected from. So did your children breast feed?
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Jeffrey Nonken (profile), 8 Nov 2011 @ 1:09pm

Jiminy Cricket on a pogo stick, it's a woman's nipple. Get over it.
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Jeffrey Nonken (profile), 8 Nov 2011 @ 1:13pm

Jiminy Cricket on a Popsicle stick, it's a woman's nipple. Get over it.
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S, 8 Nov 2011 @ 2:00pm

Re: Re:
Careful!

If you're unwary, you might remind her that everyone is naked under their clothes, and that she herself has breasts -- and nipples!

The horror, the horror!
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Rekrul, 8 Nov 2011 @ 8:50pm

Re: Re: Parent Television Council
Don't you mean the Puritanical Television Council?

I love how that article keeps saying that "adults" were exposed to the sight of Jackson's breast. I have to wonder why supposedly normal adults have such a problem with briefly seeing a breast.
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Rekrul, 8 Nov 2011 @ 8:54pm

Re:
As a parent I am concerned that my child can't even watch sporting events without be subjected to lewd language, bare bums, and nearly nipples.

I'd be more concerned with your child growing up with the belief that the human body is "dirty" or "indecent". Not only that, but the more taboo you make such things the more they will want to seek them out to see what all the fuss is about.
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The Devil's Coachman (profile), 9 Nov 2011 @ 5:14am

Re:
I sure do pity your child! I'd bet that once they do get exposed to actual pornography, and they surely will, that it will become one of the defining facets of their lives.
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Anonymous Coward, 7 May 2012 @ 10:01pm

Re: Re:
and you are a pedophile
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