Good news for those of you who love the First Amendment- an appeals court in Philadelphia has suspended the fine imposed by the FCC on CBS for the infamous Janet Jackson “wardrobe malfunction” in 2004.
If you don’t remember this planet-shakingly scandalous moment, let me refresh your memory:
Superbowl XXXVIII. Houston, Texas. New England Patriots v Carolina Panthers. With 4 seconds left in the game, Adam Vinatieri kicked a fieldgoal to win the game for New England.
But perhaps the most memorable action happened at halftime. During a performance featuring Justin Timberlake and Janet Jackson, one of Jackson’s breasts was temporarily exposed when the top of her bustier fell down- on live TV. Chaos reigned.
The FCC, reacting swiftly and harshly, slapped a $550,000 fine on CBS for “indecency.” They claimed that they had received over 500,000 complaints from viewers who had been offended by the incident. Furthermore, they asserted that Jackson and Timberlake were employees of CBS, and therefore the media company was responsible for their actions.
This was all overturned on Monday by the three judges in the 3rd Circuit Court of Appeals, who ruled that the FCC “acted arbitrarily and capriciously” in handing down the fine. They also questioned the claim about the number of complaints resulting from the incident, of which CBS had asserted that as many as 85% were form letters from single-interest groups. They further noted that Timberlake and Jackson were not employees, but rather private contractors hired for nothing more than the halftime show.
As I mentioned before, this is great to hear. CBS did not and could not control the “wardrobe malfunction,” and the idea that it had a significant negative affect on anyone, including children, is ridiculous and unproven. From a legal and Constitutional standpoint, for the sake of the First Amendment, the FCC should ALWAYS err on the side of leniency when it comes to questions of what is considered “indecent. But from a pragmatic standpoint, the FCC should step down even further from the right-wing-built pedestal from which they declare things decent or not.
In 1964, Supreme Court Justice Potter Stewart famously said that he couldn’t define pornography, but “I know it when I see it.” That is the state of censorship in today’s media. Identifying what is “decent” or “offensive” is only slightly more subjective than judging modern art. What one parent would not let their child watch on TV another parent might consider educational- an FCC executive (and indeed a SCOTUS judge) can speak only for his or herself.
The fact is that children are far less innocent and sheltered than their parents would like to believe. Even if their parents do succeed in not cussing around them, kids are exposed to profanity as early as preschool. I asked my mother about sex in first grade, after hearing the word tossed gleefully around my classroom. If my mother hadn’t explained the concept to me, someone else would have, whether a classmate, or random adult on whom I sprung the question. Parents’ fear of the human body is even more irrational: almost every child is raised on his or her mother’s breast- how is Jackson’s any different?
But this is all beside the point: if parents wants to shelter their children from body parts or curse words or (more rationally) recreational drugs or casual violence, that is their undeniable choice to make. The FCC, however, should not play this role.