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Supremes Decline to Review Infamous ‘Wardrobe Malfunction’ Case

$550,000 fine against CBS remains wiped out

The infamous Janet Jackson “wardrobe malfunction” indecency case — which led to increased profanity delay equipment installations for both TV and radio stations — has come to the end of the road.

The Supreme Court declined to review a lower court’s ruling that overturned the FCC’s $550,000 fine against CBS Corp. for televising a “fleeting” view of Janet Jackson’s breast during the live 2004 Super Bowl half time show.

A federal appeals court had ruled the fine was arbitrary and capricious because it was much larger than indecency fines had been previously, before the commission began issuing large fines for so-called “fleeting” indecent utterances.

Chief Justice John Roberts agreed with the other justices not to hear the FCC’s appeal. In a concurring opinion, he noted the FCC had changed its indecency policy to include fleeting utterances, supporting the arbitrary and capricious arguments, but he also warned “any future ‘wardrobe malfunctions’ will not be protected going forward.”

The Supreme Court earlier this month tossed out FCC indecency fines against Fox and ABC on narrow procedural grounds, telling the agency it’s free to update its broadcast indecency guidelines.

Broadcasters have consistently said the FCC’s indecency guidelines are vague and chill free speech.