3rd Circuit Finds In Favor of Janet Jackson's Tit

PHILADELPHIA—In a surprise ruling released today, the Third Circuit U.S. Court of Appeals has ruled once again that the Federal Communications Commission (FCC) had overstepped its authority and in fact violated its own policies in trying to fine CBS, Inc. for the 7/16-second baring of Janet Jackson's breast during the 2004 Super Bowl Halftime Show. Although it had been rumored that the Third Circuit might delay its decision in the CBS case until the Supreme Court had ruled on FCC v. Fox Broadcasting—a case it had remanded to the Second Circuit in 2009, and in which the Second Circuit reaffirmed its prior ruling, this time on First Amendment rather than procedural grounds, which involved the FCC targeting two instances of "indecent speech" at the 2002 and 2003 Billboard Music Awards shows: One in which award-winning singer/actress Cher responded to critics with a curt, "Fuck 'em," and another where Nicole Richie, describing her role in the sitcom "The Simple Life," complained, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"—such was not the case. Employing the same logic that the Second Circuit used in Fox, the Third Circuit came to a similar conclusion, citing the FCC's so-called Golden Globes decision, which arose out of yet another Billboard Music Awards show where singer Bono, upon receiving his award, announced that it was "really, really fucking brilliant." "The expletive utterances by Cher and Nicole Richie that were considered in Fox took place, respectively, during the 2002 and 2003 Billboard Music Awards telecasts, before the full Commission‘s March 2004 Golden Globes decision," wrote the three-judge panel's majority. "Accordingly, and applying the same rationale as in Golden Globes, the FCC declined to impose a fine. As the Fox Court observed and affirmed, the decision not to impose a fine in that case signaled the FCC‘s understanding that imposing sanctions for conduct that occurred before the FCC‘s policy change was announced would raise due process concerns." "The same principle applies here," the majority continued. "The relevant Halftime Show broadcast occurred in February 2004, preceding the FCC‘s ruling in Golden Globes. But despite its earlier consistent policy exempting all fleeting material—words and images—from its indecency rules, the FCC assessed a fine against CBS. Fox confirms our earlier observation that because the Commission did not announce any change in its fleeting- material policy until March 2004, and because the offensive conduct in this case (like the offending conduct in Golden Globes and Fox) preceded that date, the FCC‘s assessment of a forfeiture and imposition of a penalty against CBS constitutes arbitrary, and therefore unlawful, punishment." [Citations removed; emphasis in original] For further analysis of this ground-breaking case, check back later to AVN.com.