In 2004, as people watched the Super Bowl in cities across the United States, in San Diego, California, in Orange County, CA, in Los Angeles, La Jolla, Hollywood, Del Mar, Pacific Beach, Carlsbad, Malibu, Oceanside, San Marcos, Vista. and Escondido or the cities of Huntington Beach, Westminster, Buena Park, Anaheim, Santa Ana, Costa Mesa, Irvine, Newport Beach, Corona del Mar, Laguna Beach and Laguna Hills, Buena Park, Temecula, Indian Wells, La Quinta, or Palm Springs, unless they recorded the game, lost a fraction of a second of Janet Jackson’s exposed skin.
It wasn’t until the press and people played it back in slow motion that they saw what people would later claim horrified them. One of Janet Jackson’s upper body supports that was holding one of her chest assets had fallen off, revealing a bit of something that had only previously been shown in more detail on cable television. And unless you were in a coma in the firestorm that followed, you had the term “wardrobe malfunction” ingrained in your vocabulary. Even lawyers and attorneys started using the term when they showed up late in court.
Here we are in 2008. Children have not had to have years of counseling despite initial claims by conservative groups that they would, and the incident is still being litigated. In July 2008, the Third Circuit vacated a $ 550,000 FCC fine imposed on CBS for nineteen-sixteenths of a second when Janet Jackson’s chest was exposed during the Super Bowl XXXVIII halftime show in February 2004 and returned the case to the FCC. . However, the court made clear that the FCC cannot retroactively punish CBS and it is better not to try.
The court held that the FCC improperly deviated from its previous policy of allowing a fleeting image and that this deviation was arbitrary and capricious. What the ruling did not say, but should say, was that the FCC was pressured in such a way by conservatives, including those in the FCC and the executive branch of the current administration, that they acted like idiots.
Constitutional and First Amendment attorneys like myself have applauded the decision, especially when I and others received stupid calls from people claiming that they or their family members suffered immeasurable harm when they watched recordings of the halftime show over and over again.
Conservative groups were less satisfied with the ruling. However, the court ruled that, without evidence that CBS knew in advance that some indecency was about to occur, the FCC could not find that CBS was liable, especially in light of the fact that Janet Jackson and Justin Timberlake were contractors. independent and not employees of CBS. .
To prevent the FCC now simply providing a rational explanation for not allowing unintentional fleeting and indecent images and advising broadcasters of this policy so they can fine broadcasters in the future and make it impossible to dare to show a performance again live on television. as they have not dared since the fine was imposed, the court said that unintentional transmissions of alleged fleeting indecent images cannot be sanctioned without a show of scienter, that is, a conscious or reckless violation of the indecency law. If a broadcaster endeavors to exercise proper control but fails to avoid unscripted indecency, it will not have acted with Scienter if its actions were negligent rather than reckless.
Hence, the FCC’s attempt to establish a draconian power to fine off-air and out-of-business broadcasters for broadcasting unintentional fleeting footage, a power it has had for the past several years and that would absolutely freeze our rights forever. of the First Amendment, by this conservative administration, is over.
Perhaps with the next administration, whichever party takes office, the idiots at the FCC who suffered their own brain malfunction and imposed this fine can be thrown out on the streets and sent to jail to read the Constitution.
