As millions watched, Timberlake reached for Jackson's bustier, while singing, "Gonna have you naked by the end of this song."
The performers may have intended to reveal only a lacy red bra, as a Jackson spokesperson said afterward, but instead viewers saw Jackson's breast, which had a sunburst decoration covering her nipple.
The costume reveal was added during the final rehearsal, Jackson has said.
Chief Judge Anthony J. Scirica wrote the opinion handed down this morning by a three-judge panel of the U.S. Court of Appeals for the Third Circuit.
Judge Marjorie O. Rendell, wife of Gov. Rendell, dissented in part, questioning how intentional CBS's participation had to be. The third judge is Julio M. Fuentes.
The FCC, Scirica wrote, "arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency."
CBS's broadcast of Jackson's breast lasted "nine-sixteenths of one second," the opinion noted.
The ruling further stated that CBS was not responsible "for the acts of the acts of Janet Jackson and Justin
Timberlake, independent contractors hired for the limited purposes of the Halftime Show."
The FCC failed to show that CBS knowingly and willfully helped orchestrate the alleged indecency, according to the ruling.
Such willfulness, Scirica wrote, is "the constitutional minimum showing for penalizing the speech or expression of broadcasters."
