Hurrah!! Some Sanity Returns To TV Thanks To A US Federal Appeals Court Ruling That 90 Million Americans Seeing 9/16ths Of A Second Of Janet Jackson’s Right Breast Did Not Merit $550,000 In Fines

Philip M. Stone July 22, 2008

Hard to believe the furor was more than four years ago when Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl half-time show bared her right nipple on global television for all of 9/16ths of a second. The Federal Communications Commission mightily beat its chest, told CBS it couldn’t show such things and stuck it with a $550,000 fine.

CBS said that wasn’t right or fair, that it didn’t know what was going to happen, and that by imposing such a massive fine the FCC had departed from previous policy of not slamming networks for such “fleeting material”. But in order to appeal in the federal court system it had to pay the fine first, which it did, it filed the appeal in 2006 and Monday, more than two years later, the Federal Appeals Court in Philadelphia not only ruled unanimously y that the FCC did CBS wrong, but it slammed the regulators for what they did.

The Court said the Commission’s “arbitrary and capricious change of policy” was in itself enough to decide the case in CBS’ favor, but if that was not enough it also threw in the First Amendment saying it “precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors (Jackson and Justin Timberlake were performing “Rock Your Body” when he tugged too hard at her bustier covering her right breast, exposing it, apparently not the end result intended)  without offering proof of knowledge as an element of liability.”

That First Amendment ruling is really important because the Jackson fine has changed the face of so-called live US television. CBS had told the court the fine had a “chilling” affect upon the entire broadcast industry. Indeed most “live” events today are tape delayed by a few seconds just in case someone says something or does something that could get the TV station/network in trouble. Even live news broadcasts sometimes have such delays.

Most awards shows are tape delayed by a few seconds in case artists use bad language, even make  distasteful gestures,  but the court ruling makes it really clear that if they are not employees, or if the network/station had no idea what was going to happen then, under free speech, it cannot be held liable. Last spring, a different federal appeals court struck down FCC rules on so-called "fleeting expletives." The federal government is appealing with the Supreme Court scheduled to hear the case after the summer recess.

One might think that society has moved on in the intervening years, but there are plenty of groups out there organizing letter campaigns with Congress to continually tighten the screws on what TV might show – if TV pushes to the edge then nail them financially was basically the FCC policy until Monday’s court ruling.

CBS said in a statement, “This is an important win for the entire broadcasting industry, because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material.”

FCC Chairman Kevin Martin said he was "surprised” by the court’s decision. He noted there was unanimity among the Commission’s Republican and Democratic commissioners to impose the CBS fine. The Parents Television Council (PTC), an indecency watchdog group, was more direct saying the ruling "borders on judicial stupidity". It wants Congress to strengthen anti-indecency laws.

It’s worth revisiting the aftermath of that Jackson fiasco.  The FCC said it received more than 500,000 complaints, most of that coming from letter-writing campaigns organized by such groups as the PTC and the American Family Association. The furor saw the Congress pass two years later a Bill that President Bush happily signed into law that mandated a 10-fold increase in fines for radio and television broadcasters that air extensive profanity or sexual content that the FCC says violate decency standards.

Within a couple of weeks of “nipplegate” there were two Congressional hearings –  politicians understood real well the power of a sound bite on a network TV newscast -- and they and government officials fell over themselves lining up to damn CBS.

Even though Mel Karmazin, then president of Viacom that owned CBS, told the House Telecommunications Committee in two hours of being roasted over the coals that the network had no idea what was going to happen and that “Ms Jackson's unrehearsed and unapproved display went far beyond what are acceptable standards,” that didn’t stop Congresswoman Heather Wilson getting in her 15 seconds of “You knew what you were doing. You wanted us to be all abuzz. It lines your pockets."

“Everyone at Viacom and everyone at CBS and everyone at MTV (the Viacom-owned network that produced the half-time show) was shocked and appalled and embarrassed at what had happened," Karmazin pleaded, but no one was interested in hearing explanations or sorrow – this was too good an opportunity to nail CBS for anything that had upset anyone over the years. He told them the network was instituting a five-minute time delay policy so the same could never happen again, but for Congress the horse had already bolted the stable.

National Football League (NFL) commissioner Paul Tagliabue, who retired a couple of years later, let CBS hang out to dry by itself, testifying that he felt as though he had been "kicked in the stomach" when he watched the half-time performance. “– remember this was a whole 9/16th of a second, but the NFL recognized a runaway freight train when it saw one and wasn’t about to stand in its way!

And then the head of the FCC, Michael Powell, son of Colin, told a Senate hearing, “It is just the latest example of what we’ve noted is a growing list of deplorable incidents on the nation’s airwaves.” He called it “a new low for prime time television.  Not only was it outrageous and offending to children. I think it’s important to note it was enormously degrading to women to suggest that was proper behavior.  But it was just the latest example of what we’ve noted is a growing list of deplorable incidents on the nation's airwaves and the increasing concern about coarseness has resulted in a dramatic rise in public concern.”

Jackson had already apologized, saying the decision to change her performance was made after the final rehearsal. "Unfortunately the whole thing went wrong in the end. I am really sorry if I offended anyone," she said. Timberlake, at the Grammys soon after, told the world, “What occurred was unintentional, completely regrettable." he said.

That Congressional and FCC “heat” has affected network television ever since. Stations declined to show such movies as Saving Ryan’s Daughter  because of the cursing, even to show documentaries about 9/11 because of firemen cursing, and with the FCC not making pronouncements on what is or is not acceptable until after a broadcast, many stations turned to playing it safe.

Thankfully, the courts have stepped in to put things into proper perspective – and thanks are due to CBS for waging that legal battle -- it’s just a shame that the wheels of justice are so slow that we didn’t get the decision until four years after the event, and two years after the appeal was filed. Much has happened in the intervening time to US television freedom of speech and regretfully not much of that has been good. Maybe this decision will swing finally the pendulum in the right direction.