The commission’s rules at the time made an exception for 'fleeting expletives.' | REUTERS SCOTUS asked to back FCC rules

The Obama administration on Wednesday urged the Supreme Court to review the FCC’s decision to fine CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl.

In its petition to the court, Solicitor General Donald Verrilli Jr. contends that the commission’s $550,000 fine for the incident was warranted because the indecency rules cover “fleeting nudity.”


“The commission explained … that its indecency rules and policies never included a ‘fleeting nudity’ exception to indecency liability,” Verrilli wrote.

“The FCC’s explanation of its own regulatory approach is well supported by the agency’ prior guidance and decisions, as well as by the common-sense distinction between words and images,” the petition continued.

( Also on POLITICO: Obama wants 'wardrobe' fine upheld)

While the commission’s indecency rules at the time made an exception for “fleeting expletives,” that doesn’t mean that a brief flash of nudity falls under that exception, Verrilli wrote.

“Because the general policy of contextual indecency analysis applied to both visual depictions and verbal descriptions of sexual or excretory functions, such depictions and descriptions could be found indecent even if they were not repeated or extended,” Verrilli argued.

This article first appeared on POLITICO Pro at 2:19 p.m. on April 18, 2012.