The Supreme Court on Monday set aside a ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, that had overturned a $550,000 fine imposed by the Federal Communications Commission on CBS for the “wardrobe malfunction,” as the fateful moment has been described.
The Supreme Court said the Third Circuit should give “further consideration” to its conclusion last July 21 that the F.C.C. had been wrong to fine the network. A three-judge panel of the Third Circuit said the F.C.C. had not given broadcasters enough advance notice that it was tightening its policies involving fleeting displays of nudity, and that CBS should not have been held responsible for the actions of Ms. Jackson and her performing partner, Justin Timberlake.
The Supreme Court’s order that the Third Circuit re-examine its judgment was not unexpected, given the justices’ ruling last week that broadcasters that allow foul language on live programs may be held accountable, even if the vulgarities were unscripted and isolated. (The ruling, in F.C.C. v. Fox Television Stations, has no effect on cable television.)
CBS issued a statement on Monday saying that it was not surprised by the Supreme Court’s directive, given the Fox decision, “despite the differences in the two cases.” The Fox decision arose from two appearances on a music awards show by celebrities who used words long considered unacceptable in polite conversation. (For instance, Nicole Richie used vulgar language in discussing the difficulty in cleaning cow manure off a Prada purse.)
The lyrics sung by Mr. Timberlake at the Super Bowl were arguably not as vulgar, although he seemed to have been overly inspired by them. “Gonna have you naked by the end of this song,” he uttered, just before the big moment.
The exposure of Ms. Jackson’s breast lasted nine-sixteenths of one second, the Third Circuit said. That is barely enough time for the speediest wide receiver to cover five yards on a dry field, but plenty of time to generate litigation that has lasted half a decade, with accompanying lawyers’ fees.
“We are confident that in reviewing the case the Third Circuit will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS,” the network said. “This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material.”
And if the Third Circuit should once again rule in favor of CBS, the case could make its way back to the Supreme Court, assuming that the F.C.C. refuses to give up the fight.
The 2004 Super Bowl in Houston was seen by about 90 million people. Surely, not all viewers were offended by the incident involving Ms. Jackson. But many were, giving rise to a controversy that has endured longer than memories of the game itself. (For the record, the New England Patriots defeated the Carolina Panthers, 32 to 29, on a field goal by Adam Vinatieri in the final seconds.)