Janet Jackson Superbowl Show Finally Over but the Memory (Mammary) Lingers

The Third U.S. Circuit Court of Appeals has again thrown out the Federal Communications Commission’s $550,000 fine against CBS Corp. for televising Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show. The panel said nothing about the U.S. Supreme Court’s ruling in the indecency case of FCC v. Fox Television Studios changed its initial analysis that the fining was done done without sufficient notice that the FCC was changing its policy to allow for sanctions for fleeting expletives or indecent images. But the author of that first opinion — Judge Anthony Scirica — now dissents, saying the Fox decision requires the Third Circuit to revise its previous holding that the FCC violated the Administrative Procedure Act by arbitrarily and capriciously changing its policy.