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Janet Jackson Wardrobe Malfunction Case On Its Way to SCOTUS

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By Tanya Roth, Esq. on April 23, 2012 4:02 PM

CBS is not out of the woods yet on Janet Jackson's notorious Super Bowl incident from 2004.

The U.S. Supreme Court might be reviewing the infamous "wardrobe malfunction" case. The Federal Communications Commission filed a writ of certiorari, requesting the Supreme Court to review the appeals court decision.

Last November, the Third Circuit Court of Appeals ruled in favor of CBS and its affiliates, holding that the Federal Communications Commission's sanctions were improper, reports CNN.

The incident, for those of you who didn't catch a glimpse of Janet Jackson's breast during Super Bowl XXXVIII, involved the halftime show. Singer Justin Timberlake ripped off a piece of Jackson's bustier at the end of his song. For nine-sixteenths of a second, Jackson's breast(with a tiny sticker on her nipple) was exposed on a live international broadcast.

In November 2011, a three-judge panel of the Third Circuit Court of Appeals said that the FCC acted arbitrarily in imposing the fine on CBS. The FCC didn't make its intolerance for the fleeting nudity clear, the court said. As a result, the $550,000 fine was held improper by the court.

The Justice Department, in its petition to SCOTUS, has said that there exists no "fleeting images" exemption for indecent exposure in broadcasting. The incident, the petition claims, occurred during a prime-time broadcast of a family-branded event.

At the time of the wardrobe malfunction, the FCC had an exception for "fleeting expletives."

But are fleeting images more serious than fleeting expletives? The FCC is arguing that they are. Subsequent to the Super Bowl incident, the FCC began enforcing policy on fleeting images.

Can CBS be penalized for a policy applied retroactively? Or did the policy apply to CBS all along?

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