She has won six Grammy Awards, been nominated for an Oscar, and had a star placed on Hollywood's Walk of Fame. Now, Janet Jackson can pin another medal on her chest: accidental First Amendment crusader.
Yesterday, a federal appeals court dealt a significant blow to the U.S. government's attempts to police the airwaves, ruling that it could not fine CBS Corp. $550,000 (U.S.) for airing a Super Bowl halftime show in 2004 in which Ms. Jackson briefly bared her right breast.
This is the second major legal defeat in the past year for the Federal Communications Commission, which critics claim has abandoned its historical restraint and begun to zealously pursue broadcasters for violating indecency rules - even if, as in the case of Ms. Jackson and Nipplegate, the infraction lasted a mere 9/16 of a second.
The appeals court sided with this view, concluding that for the past three decades, the regulatory commission "consistently explained" that fleeting material was not cause for punishment.
"Like any agency, the FCC may change its policies without judicial second-guessing," wrote Judge Anthony Scirica of the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
"But it cannot change a well-established course of action without supplying notice of, and a reasoned explanation for, its policy departure."
Detractors of the FCC celebrated the decision as a major victory for the U.S. broadcast industry. They claim that the FCC's change in tack has had a chilling effect on broadcast television, forcing directors to alter their scripts significantly and speeding the exodus of innovative - and popular - programming to cable networks.
"Given the change in administration, and the support President Bush enjoyed among the religious right and the conservative movement, I think his appointees decided to take up his cause," said Jonathan Rintels, president of the Center for Creative Voices in Media, a non-profit lobby group. "And they did politicize the decision as to what was indecent."
FCC rules prevent broadcasters from airing "sexual or excretory organs or activities" between 6 a.m. and 10 p.m., when children are likely to be watching. CBS, however, argued it should not be responsible for an inadvertent slip.
During the Super Bowl show, watched by an estimated 90 million people, Ms. Jackson sang a duet with Justin Timberlake. Just as he uttered the words "I'm gonna have you naked by the end of this song," Mr. Timberlake ripped her costume, briefly exposing a right breast bedizened with a nipple-shield. He later explained the intent was merely to reveal a bra, and blamed the nudity on a "wardrobe malfunction."
Yesterday, FCC chairman Kevin Martin said he was surprised by the court's decision, and said the agency was hoping for vindication when the Supreme Court hears another of its indecency cases this fall. "I continue to believe that this incident was inappropriate," he said.
Last year, in a similar ruling, a New York federal appeals court dismissed the FCC's attempts to fine Fox for its broadcast of the Billboard Music Awards in 2002 and 2003, when Cher and Nicole Richie each muttered the F-word.
The New York court said the agency did not explain why it was deviating from its long-held position of not pursuing broadcasters in instances of fleeting obscenities.
Adam Thierer, a senior fellow at the Progress and Freedom Association, a market-oriented think tank in Washington, argued that the FCC's aggressive fight against indecency is hastening the demise of the broadcast industry, which has already been hurt by alternative media like the Internet and cable. "These policies are beginning to write the death warrant for over-the-air broadcasting, because they unfairly single out the platform," he said. He added that although the FCC is attempting to protect children with these policies, fewer young people are tuning into broadcast television, opting instead for largely unregulated media.
"One wonders what is the sense of all this in a world of media abundance," he said. "The FCC is protecting adults from themselves."
© Globe and Mail
