Six months after a federal appeals court sided with CBS and ruled that the FCC’s punitive fines for Janet Jackson’s Super Bowl “wardrobe malfunction” in 2004 were “arbitrary and capricious,” the Justice Department has appealed the matter to the U.S. Supreme Court. According to CNN, the government wrote in its appeal that there is no “fleeting images exemption from indecency enforcement” and that Jackson’s performance was “shocking and pandering,” airing “during a prime-time broadcast of a sporting event that was marketed as family entertainment and contained no warning that it would include nudity.”
But the Third Circuit U.S. Court of Appeals in Philadelphia ruled for CBS and its affiliates. Judge Marjorie Rendell said the FCC regulations shifted drastically a month after the Super Bowl incident attracted viewer complaints. “An agency may not apply a policy to penalize conduct that occurred before the policy was announced,” said the judge.
CBS has a month to respond to reply to the government’s appeal to the Supreme Court, whose decision to hear the case or not is not expected until June at the earliest.