Janet Jackson’s nipple could go all the way to the Supreme Court. Last week, CBS decided to challenge the $550,000 indecency fine levied against the network by the Federal Communications Commission, arguing in a 78-page brief that CBS should not be blamed because it had no advance knowledge that Justin Timberlake would rip off Jackson’s bustier during the Super Bowl halftime show and reveal her nipple shield to the world. If the FCC stands firm, CBS could plead its case before a federal appeals court and ultimately, the Supreme Court.
The FCC issued the fine in September, finding each of the 20 CBS stations owned by the parent company liable for the maximum fine of $27,500 each for broadcasting the brief glimpse of Jackson’s breast, resulting in a total fine of $550,000, the largest indecency fine ever for a broadcast TV incident. The FCC argued at the time that CBS and fellow Viacom outlet MTV, which produced the halftime show, ”tacitly approved the sexually provocative nature of the Jackson/Timberlake segment” because they’d watched the duo in rehearsals. But CBS insisted in its filing that ”the ‘costume reveal’ was as much a shock to Viacom as to everybody else,” blaming it on a ”stunt concocted by the performers.” (Both Jackson and Timberlake have both called the exposure an accident.) ”A performance cannot be ‘intended to titillate or shock’ where the shocking parts of the performance were never intended in the first place,” the filing argued. ”One cannot pander by accident.”
The filing also argued that the indecency guidelines were overly broad and vague, and that to allow the fine to stand would have a chilling effect on all live broadcasts. ”If it stands, the [proposed fine] will lead to the end of live broadcasting as we know it by placing broadcasters on notice that they risk massive liability and perhaps license revocation if they fail to adopt technical measures to avoid the possibility of a spontaneous transgression.” In other words, the five-second delay is here to stay.