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Monday, July 21, 2008

Third Circuit Says Ms. Jackson Isn't So Nasty

Today, a wardrobe malfunction in the Third Circuit had the internet abuzz—no, the robes of Judges Anthony Scirica, Marjorie Rendell and Julio Fuentes were not ripped off by Justin Timberlake. But the three Third Circuit judges did make up the panel that decided to overrule the $550,000 fine that was levied on CBS by the FCC after Janet Jackson’s breast made an appearance at the 2004 Super Bowl Halftime Show.

In CBS v. FCC, the court ruled that the FCC “acted arbitrarily and capriciously” in imposing the fine, with Judge Scirica writing the majority opinion. The court elaborated that the FCC’s fine was inconsistent: “The Commission’s determination that CBS’s broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy.” Who said court opinions were dull reading?

Judge Rendell dissented in part on the decision, questioning not the invalidity of the fine, but the degree of intentionality on the part of CBS in the incident. By concluding that images and spoken expletives deserved the same restrained enforcement policy, the court ensured that Jackson’s right breast would be etched into the annals of American law.

So, if nothing else, this case should be proof enough that watching the judiciary is an important—nay, essential—practice. Because if you take your eyes off the courts, even for nine-sixteenths of a second, you might miss something.

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