Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl drew a $550,000 fine from the FCC; however, a federal court spared CBS by throwing out the penalty. Now the FCC is asking the U.S. Supreme Court to weigh in. Notably, in his petition, Solicitor General Donald Verrilli argued that the FCC “explained… that its indecency rules and policies never included a “fleeting nudity” exception to indecency liability.”
Earlier this year, the Supreme Court heard arguments for and against restrictions on indecency on the broadcast airwaves in a case involving FOX and ABC. The Court’s ruling on this case may affect the CBS case as well.
After the FCC v FOX hearing, NRB President and CEO Dr. Frank Wright declared, “NRB has been a staunch defender of the First Amendment…. At the same time, we recognize that great responsibilities come with such a valuable freedom…. We don’t believe that the values of both free speech and fundamental decency are inconsistent.” Indeed, in a brief filed by NRB last autumn in favor of the FCC restrictions on indecency, NRB commented, “The broadcasting of indecent content during children’s viewing hours fits squarely within… well-established First Amendment exceptions, and the Commission’s policy gives ample, sufficiently clear notice to broadcasters of what is prohibited.”
By Aaron Mercer, Vice President Government Relations