An indecency case resulting from the fleeting exposure of Janet Jackson’s right nipple to 90 million Super Bowl viewers made it to the 3rd US Circuit Court of Appeals in Philadelphia yesterday, three years after the event.

In what many regard as one of the more absurd legal cases in recent US history, the court will decide whether “Nipplegate” was an intentional act of broadcasting indecency or merely, as Jackson contends, an accidental “wardrobe malfunction”.

CBS, the television network that broadcast the show, is challenging the $550,000 (£270,000) fine imposed by the broadcasting watchdog, claiming that “fleeting, isolated or unintended” images should not automatically be considered indecent.

The Federal Communications Commission (FCC) argues that “even relatively fleeting references may be found indecent where other factors contribute”. Eric Miller, the lawyer representing the FCC in court, said: “The idea of an exception for fleeting nudity flies in the face of common sense.”

In its appeal, CBS said that it “did not know about [Nipplegate] in advance; did not sanction it; and took steps to prevent anything at odds with broadcast standards”.

The glimpse of Jackson’s nipple — complete with sun-shaped nipple ring — came during the 2004 half-time Super Bowl show, when another performer, Justin Timberlake, pulled off part of Jackson’s bustier, prompting a reported 540,000 complaints to the FCC. A later Associated Press poll suggested that only 18 per cent of Americans supported the FCC’s subsequent investigation of the network.

Nipplegate has become something of a test of the federal Government’s ability to regulate broadcast indecency, especially after the FCC was found by a court in New York to have acted “arbitrarily and capriciously” by attempting to penalise the Fox Network over strong language used by Cher and Nicole Richie at the 2002 and 2003 Billboard Music Awards respectively. Fox is owned by News Corporation, parent company of The Times.

“The FCC’s new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly television,” Robert Corn-Revere, a lawyer for CBS, said last night.

Although the case was rejected on technical grounds, the court says it was sceptical that the FCC could overcome free speech arguments to support its policy on “fleeting expletives”. The FCC is considering an appeal to the Supreme Court. A Senate committee is working on legislation to back up the FCC and has approved the Protecting Children from Indecent Programming Act, which would require the FCC “to maintain a policy that a single word or image may be considered indecent”.

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