The FCC has not tired of litigating the infamous 2004 Super Bowl wardrobe malfunction, but apparently the courts are tired of it. And at long last it appears that Janet Jackson’s nipple can be laid to rest, figuratively speaking.
CBS has won twice in lower courts – in a statement, it pointed out its prior victories and expressed gratitude that the incident is finally in the rear view mirror.
Chief Justice John Roberts did comment that the decision to leave the case alone hinged on the fleeting nature of the incident, not the actual content of the incident. He said the decision should not be construed as a Supreme Court blessing on wardrobe malfunctions, but rather an acknowledgement that the FCC changed its enforcement policy without warning.
RBR-TVBR observation: This decision not to hear any further argument on this matter confirms that this case is viewed in the same vein as the recent one in which Fox and ABC were let off the hook for incidents of fleeting indecent content.
The incident in question lasted seven-sixteenths of a second – if you blink, you missed it, which is apparently what this writer did, because I was watching the telecast at the time and didn’t notice it.
Yet it has been kept alive for eight years now, and was for all intents and purposes the catalyst for the possibility of a $325K fine for indecent content, a punishment the FCC has thus far declined to make use of.
However, the fact that it is there in the arsenal is likely the reason that the content dispute has made it all the way to the Supreme Court.
If the FCC ever does make use of it – especially if it hits multiple network affiliates for the maximum fine for material that went out over each, which could conceivably add up to a $65M fine ($325K X 210 affiliates) – the courts are sure to be hopping again.
