FCC, CBS Continue To Battle Over Janet Jackson Reveal

The Federal Communications Commission, backed by the Justice Department, says that broadcasters give up full First Amendment status when they get a government license, and so should be subject to government regulation of swearing and nudity when kids could be watching.

That was the gist of the FCC's supplemental brief to the Third Circuit Court of Appeals, which is reviewing its earlier decision that the FCC's $550,000 fine of CBS for Janet Jackson's partially exposed breast on the 2004 Super Bowl halftime show broadcast was arbitrary and capricious. The Third Circuit had sought input on whether, if CBS was found to have knowledge of the "reveal," the FCC should be applying the criminal or civil recklessness standard. The FCC argues it should be the latter, which would mean CBS could be culpable even if it was not aware of what Jackson and Justin Timberlake were going to do, so long as it should have been aware. The criminal recklessness standard applies only if CBS had been aware of the risk and chose to disregard it.