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Janet Jackson ‘flap’: Everybody lost
Inside the First Amendment

By Gene Policinski
First Amendment Center

The “flap over the flap” has proven to be a flub, at least in the opinion of a federal appeals court reviewing the FCC’s $550,000 fine of CBS as a result of Janet Jackson’s famed “wardrobe malfunction” during the 2004 Super Bowl halftime show.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled July 21 that the FCC’s action in punishing CBS didn’t mesh with the previous 30 years of agency action that was punitive only when indecent programming was “pervasive,” not fleeting.

The court didn’t mince words about the incident: It said Jackson and performing partner Justin Timberlake deviated from the show’s script with a “deceitful and manipulative act,” the baring of Jackson’s right breast on camera for nine-sixteenths of a second.

But, the panel ruled, for more than three decades the FCC — which oversees broadcast but not cable or satellite TV — has said that so-called “fleeting” incidents didn’t reach the “pervasive” level. The judges said the agency was entitled to change its policies, but not after the fact and without notice.

So years after nine-sixteenths of a second energized the push for increased fines and more government control over what’s on television, we’re left with this bare fact: Everybody lost in this case.

CBS won its appeal of the fine — but suffered damage to its reputation, was embroiled in lengthy legal action, and saw the resulting uproar provide new life to critics who would parse TV content using various sets of personal moral guidelines.

Groups like the Parents Television Council initially won when the FCC issued its fine – but after July 21 had to retool by posting online complaints about ”activist judges across the country” overturning the FCC action and, not incidentally, thwarting the result of a successful PTC letter-writing campaign.

Jackson and Timberlake can been seen either as inept performers who accidentally caused a major fiasco, or as publicity hounds who tricked CBS and some 90 million viewers with a less-than-artful closing stunt.

And the American public is either frustrated with a federal agency’s inability to enforce its own rules, or is wondering why such a momentary moment still lingers in court more than four years later.

The appeals court decision came in a 102-page ruling exploring various issues raised by the FCC and by CBS in addition to the agency’s rule-making process: Whether the network was legally responsible for Jackson-Timberlake actions if the court found they were “employees” and not independent contractors, whether the network took sufficient steps to anticipate and prevent an indecent image from reaching the airwaves, and whether there is a legal difference between “fleeting” words and “fleeting” images.

But we should consider one additional thing: A comparison between this drawn-out, complex case and the swift, uncomplicated and decisive nature of the private sector’s “decision” in 2007 about shock-jock Don Imus, after his infamous derogatory references to the Rutgers University women’s basketball team.

Imus’ actual insulting comment lasted longer than “fleeting” milliseconds — but not that much longer. And his words focused on race, perhaps the only subject in America more likely to produce stronger reactions than sex. Still, in little more than one week, without any government agency getting involved, Imus had become the target of massive public outrage and both his highly rated radio program and companion TV show were off the air.

If we think the goal in both the Jackson and Imus incidents should have been to hold someone accountable for stepping over a moral line, then there’s little question that the public outcry over Imus was more effective than government review — and much quicker.

The First Amendment protects free expression, both in the original sense and in the ability of others to react to it. The amendment’s 45 words restrain government and empower the “speaker” — but no provision is made for protection against a negative reception.

Surveys by the First Amendment Center and others show Americans see themselves — as viewers and as parents — as the first line of defense against TV programming they don’t like, with content producers second and government officials a distant third.

It doesn’t take four years to turn to a new radio show or TV station. No judge has to rule on a letter to a network or an advertiser, sent either as an individual or as part of a nationwide campaign. And I think even I can work the “change channel” button on my TV remote in less than nine-sixteenths of a second if I really want to.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: E-mail:


Court tosses FCC 'wardrobe malfunction' fine

3rd Circuit panel rules that agency 'acted arbitrarily and capriciously' in punishing fleeting nudity during 2004 Super Bowl halftime show. 07.21.08

FCC appeals Janet Jackson case to Supreme Court

Agency says 3rd Circuit incorrectly applied rule regarding fleeting expletives when it threw out $550,000 fine against CBS for singer's breast-baring performance at 2004 Super Bowl. 11.24.08

High court to 3rd Circuit: Reconsider wardrobe-malfunction case

Appeals court last year threw out $550,000 fine that FCC had imposed on CBS for 2004 Super Bowl flap involving Janet Jackson. 05.04.09

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