The Third Circuit Court of Appeals overturned the Federal Communications Commission (FCC) $550,000 fine charged to CBS, stating that the network is not responsible for the Janet Jackson/Justin Timberlake "wardrobe malfunction" of 2004’s Superbowl halftime show. The Court also ruled that the FFC had randomly changed its policy on “fleeting instances” of indecency without notifying broadcasters, and that in its efforts to regulate television content, the FFC is dangerously stepping on the lines of the First Amendment.

"The government’s authority to restrict constitutionally protected speech or expression can be no greater than its authority to restrict unprotected speech or expression," said the Court in its written decision.
It was a 2-1 ruling, with Chief Judge Anthony J. Scirica declaring that the FCC was contradicting itself. For almost 30 years, the agency had a policy of not pursuing legal action against broadcasters who show “fleeting instances” of indecent material.
“Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure,” said the Court.
The FCC argued that though the exposure was only for 9/16th of a second, Jackson’s nudity was still graphic and as her then employer, CBS should be fined for the incidence. The overturning of such a ruling has great implications for those in the entertainment business.

"The court agreed with us: the FCC's inconsistent and unexplained departure from prior decisions leaves artists and journalists confused as to what is, and is not, permissible," said Andrew Jay Schwartzman, part of the Media Access Project.

The judges included Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes.

As a result of the 2004 “wardrobe malfunction,” broadcasters now air their live programs on a delay, allowing time for censorship of inappropriate material.