In a gift to legal bloggers everywhere, the Supreme Court has made sure that we will have Janet Jackson's infamous "wardrobe malfunction" to write about for some time to come.
The Court vacated a judgment of the Third Circuit Court of appeals and remanded the case back to the lower court for reconsideration in light of FCC v. Fox Tel. Stations, Inc., last week's opinion that upheld the FCC's decision to change its regulations of fleeting expletives.
The FCC fined CBS $550,000 for Jackson's breast-baring halftime show performance, but the Third Circuit overturned the fine after it determined that the agency had violated its own policy of treating words and images under the same standards for when considering claims of indecency. The agency argued that Jackson's flash was subject to a fine because
the agency had a different policy for fleeting images than it did for
fleeting expletives. The Third Circuit, examining past enforcement
cases, disagreed, and found that the FCC had always enforced its rules the same
regardless of whether the allegedly indecent broadcast was of an image
or a word.
Since the FCC's actions in this case constituted a departure from its
prior standards, the Third Circuit wrote, the agency should have
provided "notice of and a reasoned explanation for" the change. The Third Circuit found that the agency did not do so, and the court overturned the fine.
The Supreme Court recently upheld a related rule change regarding
fleeting expletives in FCC v. Fox. In that case, the Court found that
the FCC instituted the change, which made fleeting expletives
actionable, in a procedurally correct manner. It remanded the case
back to the court of appeals for further proceedings.
The remand by the Supreme Court today gives the Third Circuit the opportunity to review its previous decision using the guidance the Court laid down in its examination of the fleeting expletives rule change.
The court of appeals in FCC v. Fox had questioned the constitutionality of the FCC's proposed fleeting expletive rule, however, so the issue could eventually end up back
before the Supreme Court if the court of appeals strikes down the rule on that ground. That could in turn affect the path of the
wardrobe malfunction case.
Litigation over the halftime show will likely continue for some time -
unlike the breast-exposure itself, which only lasted a scant
nine-sixteenths of a second.
That's a lot of litigation for just a little titillation.