ACLU Applauds Federal Court Decision To Toss Fine In "Wardrobe Malfunction" Case

July 21, 2008 12:00 am

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FCC Cannot Leverage Random Fines For Fleeting Images Of Nudity

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NEW YORK – The American Civil Liberties Union today applauded a federal appeals court decision to uphold free speech by throwing out a $550,000 indecency fine leveraged against CBS for the Janet Jackson “wardrobe malfunction” that exposed her breast at the 2004 Super Bowl.

“Whatever one’s view on what constitutes indecency, the government can’t change the rules halfway through the game,” said Chris Hansen, Senior Staff Attorney with the ACLU First Amendment Working Group. “The Federal Communications Commission abandoned 30 years of precedent by handing out a fine to a company that thought it was playing by the rules, and the court was right to throw out the penalty.”

The U.S. Court of Appeals for the Third Circuit ruled that the Federal Communications Commission (FCC) deviated from its standard practice over the last several decades of fining broadcasting companies for indecency only when the incident was “so pervasive as to amount to ‘shock treatment’ for the audience.” In throwing out the fine against CBS, the court found that the FCC “acted arbitrarily and capriciously” in issuing the fine for the brief image of Jackson’s breast appearing on the screen for nine-sixteenths of one second.

“The FCC’s vague and shifting standards highlight the fundamental First Amendment problem with allowing the government to censor speech based upon its own notions of what is ‘decent,’” said Hansen. “The government does not have that power for books and magazines and it should not have that power for television and radio.”

The ACLU plans to file a friend of the court brief in FCC v. Fox Television Stations, a related case that the Supreme Court will hear this fall. In that case, a lower court found the FCC failed to provide adequate justification for its new regulations governing the broadcast of fleeting expletives, and the Justice Department is appealing that decision on behalf of the FCC. The ACLU urges the Court to uphold the lower court ruling.

In related legislation, the ACLU is urging Congress to reject a bill that would unnecessarily reinstate the FCC’s ability to prohibit the use of profanity from 6 a.m. to 10 p.m. on broadcast television.

More information about FCC v. Fox Television Stations is available online at:

More information about the “fleeting expletives” bill is online at:

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