2004 CBS/Jackson/Timberlake “Wardrobe Malfunction” Fine Overturned by 3rd Circuit Court [Press Release]


Frederick Lane


In a 102-page opinion released earlier today, the Third Circuit Court of Appeals overturned the $550,000 fine assessed by the Federal Communications Commission (FCC) against CBS for the infamous Janet Jackson/Justin Timberlake “wardrobe malfunction” during the 2004 Super Bowl halftime show. In reaching its decision, the Court found that the FCC had acted arbitrarily and capriciously by changing its policy on “fleeting material” without proper notice to broadcasters. The Court also rejected the FCC’s conclusion that CBS was legally responsible for the actions of the two performers.

The 3rd Circuit’s decision was applauded by Vermont author and attorney Frederick Lane, whose recent book “The Decency Wars: The Campaign to Cleanse American Culture” (Prometheus Books 2006), chronicled the 2004 Super Bowl halftime show and the legal proceedings that followed.

“The FCC’s tortured attempt to revise its policies to punish CBS was only marginally motivated by concern for public decency,” Lane said. “Instead, the Commission’s unusually aggressive investigation and punishment of CBS was motivated by a desire by Michael Powell to deflect attention from his controversial deregulatory policies and the Bush White House’s interest in satisfying its Religious Right base in an election year.”

Particularly noteworthy, Lane says, is the 3rd Circuit’s criticism of the FCC for its efforts to turn its indecent speech regulation into strict liability for broadcasters, a policy the Court said would have a significant chilling effect on the First Amendment. “If liability for obscenity may lie only where scienter [knowledge of criminality] is proven, then liability for higher-value speech must depend on a showing of some quantum of scienter at least as significant,” the Court wrote. “The government’s authority to restrict constitutionally protected speech or expression can be no greater than its authority to restrict unprotected speech or expression.”

“For much of the past decade,” Lane said, “social and religious conservatives have been trying to use the FCC to impose a narrow moral agenda on broadcasters; some even want to extend the FCC’s jurisdiction to cable and the Internet. The Court’s opinion underscores the danger of allowing a small group of government regulators to impose their subjective views regarding speech on the entire country.”

Author Availability

Lane is a resident of Burlington, VT, and is available for interviews by phone, e-mail, or by remote feed from one of the many radio and television studios in the area. He is currently promoting his most recent book, “The Court and the Cross: The Religious Right’s Crusade to Reshape the Supreme Court” (Beacon Press 2008).

Lane’s previous books include: “The Decency Wars: The Campaign to Cleanse American Culture” (Prometheus Books 2006), which led to an appearance on “The Daily Show with John Stewart”; “The Naked Employee: How Technology Is Compromising Workplace Privacy” (Amacom 2003); and “Obscene Profits: The Entrepreneurs of Privacy in the Cyber Age” (Routledge 2000). In addition to “The Daily Show,” he has also appeared on a variety of other national television programs, including ABC’s “Good Morning America Weekend,” NBC’s “Weekend Today,” ABC’s “Nightline,” CBS’s “60 Minutes,” and assorted BBC documentaries. Lane’s next book is entitled “People in Glass Houses: American Law, Technology, and the Right to Privacy,” and is scheduled for publication in spring 2009 by Beacon.

Early Praise for The Court and the Cross (from the book jacket):

“Separation of church and state is so basic a part of American values and history that it is hard to realize it is under threat. But it is, profoundly. In The Court and the Cross Frederick Lane explains why: a relentless, determined and successful campaign by the Christian Right to put its supporters on the federal courts, especially the Supreme Court. It is a colorful and compelling book.” — Anthony Lewis, author of Gideon’s Trumpet and Freedom for the Thought We Hate: A Biography of the First Amendment

“The Court and the Cross is a commendable and sobering account of the scope and significance of the Christian Right’s incessant efforts to make a mockery of core constitutional principle. Not only does it elegantly review key Supreme Court cases about religion, but points to the extensive range of social issues the Right is working to get up for examination before our highest court, an increasingly conservative body. If you are not sure that the decisions of the Supreme Court ‘matter much’ to you in your daily life, read The Court and the Cross and I guarantee you’ll be rethinking that position. The Court’s erosion of your individual religious freedom and the dictates of your conscience has already begun.” — Rev. Barry Lynn, author of Piety & Politics and Executive Director of Americans United for the Separation of Church and State

“In The Court and the Cross, Frederick S. Lane spotlights what ought to be one of the most critical issues in this election year: the religious right’s successful long-term effort to reshape the Supreme Court and the entire federal judiciary. With wit, legal erudition and political acumen, Lane explains exactly why the power to appoint federal judges with lifetime tenure may be a president’s most significant legacy and why liberals have been asleep at the switch while conservatives have had their way with the courts. This timely and disturbing book offers a much-needed wakeup call to all who cherish our Constitution and understand that the separation of church and state was America’s founding gift to its own citizens and the world.” — Susan Jacoby, author of The Age of American Unreason and Freethinkers: A History of American Secularism

“Nowhere has the religious right’s effort to remake America been more successful, or more poorly understood, than in its campaign to control the courts, a campaign rooted in a revisionist history that seeks to write secularism out of the nation’s past. Frederick Lane’s illuminating, important The Court and the Cross punctures the movement’s canards and deftly explains what’s at stake. Grounded in a fascinating history, this is compelling, crucial book.” — Michelle Goldberg, author of Kingdom Coming: The Rise of Christian Nationalism


Frederick Lane

Leah Riviere
Beacon Press
25 Beacon Street
Boston, MA 02108

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