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February 24, 2010 1:32 PM

Davis Wright Still Plugging Away on Wardrobe Malfunction Case

Posted by Zach Lowe

During the New Orleans Saints victory in the Super Bowl earlier this month, we got into a brief discussion with friends over exactly when the infamous Janet Jackson wardrobe malfunction happened. It couldn't have been all the way back in 2004--six years ago!--right?

Wrong. It was indeed February 1, 2004, when Justin Timberlake and Janet Jackson performed at halftime of the Super Bowl and gave viewers a surprise look at Jackson's bare breast. Six years later, CBS is still fighting to get out of the $550,000 in fines the Federal Communications Commission imposed on the network for the brief flash of accidental nudity. On Tuesday afternoon the network, repped by its longtime counsel in this case, Davis Wright Tremaine, was back in the U.S. Court of Appeals for the Third Circuit, the same court that overturned the fine in 2008, according to the Legal Intelligencer, an Am Law Daily sibling publication. The court ruled then that the FCC, in fining CBS, had changed its indecency guidelines without going through the proper protocol, the Intelligencer says. 

But the U.S. Supreme Court instructed the appeals court to rehear the case after the justices ruled 5-4 last year that the FCC was within its rights to amend its policy on so-called "fleeting expletives"--for example, the on-air curses that celebrities such as Bono and Cher have uttered spontaneously during awards shows. The FCC announced after several such incidents that it would no longer tolerate fleeting expletives, and the networks that had broadcast the naughty words, though they were not fined, nonetheless argued that the FCC had changed its rules capriciously. The high court disagreed, although the justices did not rule on whether penalties against broadcasters violate the First Amendment of the U.S. Constitution. The 5-4 ruling focused only on the FCC's power to change its positions on such issues, according to the Intelligencer. 

Davis Wright and CBS are now arguing that the high court's ruling in the expletives case--even though it backed the FCC on the issue of its rule-changing power--nonetheless sets a precedent that the agency should not be able to go back in time and levy fines for broadcasts that inspired the new, stricter rules, the Intelligencer says. In other words: The network wants the Third Circuit to come to the same conclusion as it did in 2008 and toss out the $550,000 fine. 

As for the broader First Amendment issues involved, those will have to wait for another day.

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