Supremes Pass on Janet Jackson Halftime Show Reveal Appeal

Lower court ruling expunging CBS fine stands, but court says next wardrobe malfunction might not be so lucky

By John Eggerton -- Broadcasting & Cable, 6/29/2012 10:14:34 AM

The Supreme Court said on Friday it would not hear the government's appeal in the Janet Jackson Super Bowl reveal.

That leaves intact a lower court decision vacating the fine against CBS. But the court also signaled that future wardrobe malfunctions would be fair game since the FCC had now served notice that "the brevity of an indecent broadcast -- be it word or image -- cannot immunize it from FCC censure," said Justice Roberts in a concurrence. Justice Ginsburg added that the FCC could also take a second look at its indecency policy given the changes in technology and its "uncertain course" since Pacifica.

The High Court ruled two weeks ago on the FCC's challenge to the Fox and ABC indecency decisions, vacating them but leaving the FCC's power to regulate indecency intact. But that ruling did not include the Janet Jackson case, which was appealed separately.

Back in January 2012, the Third Circuit Court of Appeals declined to review the decision by a three-judge panel overturning the FCC's $550,000 fine of CBS for the Janet Jackson Super Bowl reveal.

That panel in November 2011, on remand from the Supreme Court, reaffirmed its 2008 decision that the FCC's fine of CBS stations in the 2004 Janet Jackson Super Bowl reveal indecency decision was arbitrary and was a policy change for which CBS stations were improperly penalized.

It did not remand the decision back to the FCC for more fact finding, as the commission had asked it to do.

While the Jackson and Fox and ABC indecency decisions have now all been reversed, the FCC is free to pursue other indecency complaints so long as it gives broadcasters fair warning about what it is going to do, which the court suggested it has done.