CBS, FCC Still Fighting Over Janet Jackson’s “Wardrobe Malfunction”

Odds are the only thing you remember about the 2004 Super Bowl is what happened during Janet Jackson and Justin Timberlake‘s halftime performance. As Broadcasting & Cable reports today, the FCC’s not over it, and CBS hasn’t given up the fight.

CBS has been relentlessly fighting the FCC’s initial fine–$550,000–for the “wardrobe malfunction” that exposed Jackson’s breast.

The fine was found to be “arbitrary and capricious” by an appeals court, but that ruling’s being reviewed by the court amid questions over whether CBS knew ahead of time about the cleavage reveal. As B&C reports, the fine has now taken a back seat to an even bigger battle: the First Amendment.

The Third Circuit had sought input on whether, if CBS was found to have knowledge of the “reveal,” the FCC should be applying the criminal or civil recklessness standard. The FCC argues it should be the latter, which would mean CBS could be culpable even if it was not aware of what Jackson and Justin Timberlake were going to do, so long as it should have been aware. The criminal recklessness standard applies only if CBS had been aware of the risk and chose to disregard it.

CBS argued that the First Amendment implications of content regulations on speech requires a heightened scrutiny comparable to the criminal liability standard, but the FCC said no. “Although broadcasters engage in speech, they are not like other speakers. A broadcast licensee is ‘granted the free and exclusive use of a limited and valuable part of the public domain,’ in exchange for which it agrees to be ‘burdened by enforceable public obligations,’ including the obligation not to broadcast indecent material,” the commission said, quoting language from previous court decisions.