Court Seeks FCC Standard for Further Indecency Inquiry

The Third Circuit Court of Appeals wants to know what standard of proof the Federal Communications Commission would use to conclude that CBS was reckless in broadcasting most of Janet Jackson's breast during the Super Bowl halftime show.

CBS has said it did not know the reveal was coming. The court wants to know whether CBS knew or should have known that Justin Timberlake was going to bare most of Janet Jackson's breast. It also asks, assuming the network was reckless in broadcasting the reveal anyway (given that presumed knowledge is the standard for an FCC penalty for indecency), "is the standard for recklessness the one commonly used in the civil context or the one commonly used in the criminal context?" It is a narrow point of law, but could signal where the court is heading. "[The court] implies that they are going to rule that the FCC has to figure out if CBS knew, or should have known, that Janet Jackson was going to show her breasts," said Andrew Schwartzman, of the Media Access Project, which represented writers, producers and directors in a friend of the court brief.