The broadcast of a brief episode of nudity was at the core of the FCC fine against CBS after the Janet Jackson Super Bowl wardrobe malfunction, which is up for review at the Supreme Court. But the Court has another case with a similar issue before it.
That would be in the FCC case against Fox Television. The FCC says asked the Supremes to hold off on a ruling on the malfunction until they have disposed of the Fox case, on grounds that the Fox ruling may well illuminate the issues present in the malfunction case.
The cases both involve the concept of fleeting indecency – the incidents were brief and non-repetitive, and traditionally the FCC has not taken action when such events occur.
The FCC told the court, “As a general matter, the FCC views brevity as a factor militating against a finding of indecency, but not as the basis for a categorical exemption.”