Judging The 'Nipplegate' Fine Arguments

Where It All Began

VIACOM and the FCC squared off at the Third U.S. Circuit Court of Appeals in PHILADELPHIA earlier today, arguing over the legality of a $550,000 indecency fine for JANET JACKSON's "Nipplegate" performance during the Super Bowl three years ago. According to multiple wire reports, each side had a chance to present their arguments, then took questions from the three-judge Court.

Noted First Amendment lawyer ROBERT CORN-REVERE, representing VIACOM/CBS, urged the Court of Appeals to overturn the fine because the fractions-of-a-second-long incident was "unscripted, unauthorized and unintended," and that the ruling has had a "profoundly censorious effect" on U.S. broadcasters, who are now fearful of similar consequences.

Using the SEPTEMBER 11 date as an example, CORN-REVERE brought up the reluctance of some CBS affiliates to air a critically acclaimed 9/11 documentary because fleeting commentary of the 9/11 eyewitnesses in the film could be considered "indecent" of restrictive FCC content rules.

FCC attorney ERIC MILLER argued that the incident was indecent because it was a "highly sexualized performance" even before the exposure, and cited a choreographer's statement that the performance would have "some shocking moments" as a smoking gun that proves CBS knew of the incident beforehand.

"CBS was indifferent to the fact that an obvious risk can constitute a deliberate omission," he said.

The main point of contention came during questioning over the issue of whether JACKSON and TIMBERLAKE were essentially employees of CBS, which would render the network liable for their actions. Judge MARJORIE RENDELL noted that when house painters came to paint her house, she was not their boss. MILLER responded that the house painters supplied their own tools, in the same way that CBS had supplied the set. "But I supply the house," JUDGE RENDELL retorted.

A decision is expected in a few months.

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