(CN) – The Supreme Court refused to let the Federal Communications Commission defend the $550,000 it levied against CBS over Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super Bowl halftime show.
Regulators had petitioned the high court for certiorari after the 3rd Circuit invalidated the fine last year.
Chief Justice John Roberts said Friday that he agreed the case did not merit review from the Supreme Court, but he add that the Philadelphia-based federal appeals court may have erred in seeing the fine as “an unexplained departure from the agency’s longstanding policy of excusing the broadcast of fleeting moments of indecency.”
Noting the court’s decision last month about the FCC’s application of its “fleeting expletives” policy against ABC and Fox, Roberts said a fleeting “image” may not qualify for the same exemptions that the FCC once afforded purveyors of fleeting “expletives.”
“As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children,” his concurring opinion states.
The chief justice added that the issue has nevertheless been rendered moot by the FCC’s decision to abandon its exception for fleeting expletives.
“Looking ahead, it makes no difference as a matter of administrative law whether the FCC’s fleeting expletive policy applies to allegedly fleeting images, because the FCC no longer adheres to the fleeting expletive policy,” he wrote. “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.”
Justice Ruth Bader Ginsburg also explained her concurrence.
As she noted in earlier decision, FCC v. Fox Television Stations, Ginsburg emphasized that the time has come for the commission to reconsider its 1978 holding in FCC v. Pacifica Foundation.
Ginsburg said in the earlier opinion that the 1978 holding “was wrong when it issued.”
During the 2004 Super Bowl half-time performance of “Rock Your Body,” singer Justin Timberlake tore away a piece of the bustier being sported by Jackson.
Her bare breast was exposed for nine-sixteenths of a second.
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