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Court Strikes Down Penalty for “Nipplegate”

(November 2, 2011) – The U.S. Court of Appeals for the Third Circuit today invalidated—for the second time—a $550,000 penalty that the Federal Communications Commission levied against CBS television for broadcasting a fleeting image of the singer Janet Jackson‘s right breast during the live halftime Super Bowl show in February 2004. The decision represents one more judicial rejection of the FCC’s dramatic escalation, in recent years, in the censorship of programming it perceives as “indecent.”

The decision reaffirmed the Third Circuit’s earlier ruling that the FCC’s punishment of CBS was “arbitrary and capricious” because the agency had departed, without any rational explanation, from its previous policy of allowing “fleeting images” of nudity. The Supreme Court in 2009 vacated that earlier ruling and sent the case back to the Third Circuit for reconsideration in light of Fox Television v. FCC, a case challenging the FCC’s new rule against “fleeting expletives.”

In Fox, the Supreme Court held that the new “fleeting expletives” rule was not arbitrary and capricious, but it did not decide whether the rule, or the entire indecency regime, violates the First Amendment. Fox is now back before the Supreme Court, for decision on the constitutional question. (See Back to the Past: the Government's Brief in the “Fleeting Expletives” Case.)

The two judges in the court of appeals majority expressed little patience with the FCC’s legal arguments, which they called “implausible” and an attempt to “rewrite history.” One judge dissented.

If the Obama Administration follows past practice, it will seek Supreme Courtreview.

Update: On June 29, 2012, the Supreme Court refused to consider the FCC's appeal from the Third Circuit ruling. But Chief Justice John Roberts warned that "it is now clear that the brevity of an indecent broadcast - be it word or image - cannot immunize it from FCC censure. ... Any future 'wardrobe malfunctions' will not be protected on the ground relied on by the court below." Roberts was thus signaling that in his view, the FCC's strict new rules against "fleeting indecency" are constitutional. See "The FCC and Indecency: The Supreme Court Decides Not to Decide," describing the Court's June 21 ruling against the FCC on narrow due process grounds while leaving the agency free to refashion its policy or not.

The Third Circuit decision is at

For a commentary on the origins of this controversy, see What is the Fuss About Janet Jackson's Breast?

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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