Digital Media and Data Privacy Law Blog

Broadcasting & Cable is reporting that the Third Circuit has scheduled oral argument in the Janet Jackson "wardrobe malfunction" case for February 23, 2010, at 1:30 p.m. 

The case involves review of the FCC's determination that the Super Bowl half-time broadcast of less than one second of Janet Jackson's bare breast was actionably indecent.  In July 2008, the Third Circuit vacated and remanded the FCC's decision, finding that the Commission's action was arbitrary and capricious because the material at issue was "fleeting" and, at the time of the broadcast, the FCC's policy was not to sanction the broadcast of "fleeting nudity."  The FCC appealed the Third Circuit's decision to the U.S. Supreme Court.

However, the Second Circuit's "fleeting expletive" case made it to the Supreme Court before the Third Circuit's case and, as reported earlier, the Supreme Court in Fox v. FCC upheld the FCC's decision in that case on procedural grounds.  But the Supreme Court remanded the Fox case to the Second Circuit to determine whether the FCC can regulate "fleeting expletives" without violating the free-speech protections of the First Amendment. 

Shortly after the Supreme Court issued its Fox opinion, it vacated the Third Circuit's Janet Jackson decision and remanded the case for further consideration in light of Fox.  Just as the oral argument scheduled before the Second Circuit on January 13 in Fox, the Third Circuit oral argument on February 23 is expected to explore whether the FCC's "fleeting nudity" indecency policy can survive First Amendment scrutiny.

We will keep you informed of developments in these two important cases.