CBS Argues That Halftime Show Was Not Indecent
September 12, 2007

At Tuesday's "nipplegate" hearing before the U.S. 3rd Circuit Court of Appeals in Philadelphia, CBS Corp. argued that it should not be held liable for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction" because the stunt was both unscripted and unintended. CBS also said that if the FCC's $550,000 fine is upheld, it will effectively censor U.S. broadcasting. CBS lawyer Robert Corn-Revere urged the court to overturn the fine and said the ruling has had a "profoundly censorious effect" on U.S. broadcasting by deterring stations from showing material that could possibly be considered indecent, according to Reuters. The network feels that by fining them, the FCC has abandoned its policy of avoiding penalties for "fleeting" or "isolated" images.

However, FCC attorney Eric Miller defended the decision that the halftime show was indecent because it was a "highly sexualized performance" even before the brief breast exposure. Miller claims that CBS had been "willful" in its broadcast because it failed to guard against indecency. He said the National Football League had expressed concern beforehand about the sexually charged performance and that Jackson's choreographer said in advance the show would contain "some shocking moments." "CBS was indifferent to the fact that an obvious risk can constitute a deliberate omission," Miller argued, according to Reuters.

Miller also said that Jackson and halftime co-star Justin Timberlake were employees of CBS, therefore the network should have to pay for their actions. However, Julio Fuentes, one member of the three-judge panel, challenged that claim. "That doesn't make sense at all," Fuentes said, according to Reuters. "They were not employees of CBS, were they?"

The network immediately apologized after the incident aired and both Jackson and Timberlake confirmed they planned it "independently and clandestinely" without informing anyone, according to court documents. At the time, Jackson released a statement saying, "The decision to have a costume reveal at the end of my halftime show was made after final rehearsals. [Halftime show producer] MTV was completely unaware of it. It was not my intention that it go as far as it did."

The court is expected to rule in the coming months but it did not indicate exactly when.

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Jon Zellner
EVP/Programming Operations

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