Government Petitions Supreme Court to Take Infamous Wardrobe Malfunction Case

Currently weighing decision on broadcast indecency cases

The breast is back. Janet Jackson's brief breast flash during CBS' broadcast of the Super Bowl eight years ago has been anything but fleeting in the courts. Seeking a final resolution of the case, the federal government Wednesday petitioned the Supreme Court to review the Federal Communications Commission's action to fine CBS $550,000 for "fleeting nudity."

CBS challenged the FCC's decision as arbitrary and the U. S. Court of Appeals in Philadelphia agreed in 2008. The government appealed to the Supreme Court, but the high court turned it back to the U.S. Court of Appeals a year later. Last November, the Third Circuit tossed the case again.

In its petition, the government argues that the court of appeals "erred in overturning the commission's determination that CBS' broadcast of the 2004 Super Bowl halftime show violated federal indecency prohibitions."

“Because the general policy of contextual indecency analysis applied to both visual depictions and verbal descriptions of sexual or excretory functions, such depictions and descriptions could be found indecent even if they were not repeated or extended,” wrote Donald Verrilli Jr., the U. S. solicitor general.

The Supreme Court is currently considering two broadcast indecency cases it heard in January: FCC v. ABC (a bare butt was exposed in a 2003 episode of NYPD Blue) and FCC v. Fox (Cher, Bono and others using "fleeting expletives" in live awards shows). A decision is due on those two cases this summer.