Court throws out fine for indecent ‘wardrobe malfunction’
- Jul 22, 2008 - 1 -
A federal court has dealt yet another blow to those who wish to uphold basic standards of decency. In what appeared to be a power grab, the Third Circuit Court of Appeals yesterday threw out a $550,000 fine levied by the Federal Communications Commission (FCC) on CBS Corp. for airing the bared breast of pop star Janet Jackson during the 2004 Super Bowl halftime show.
The judges may have weakened the FCC’s authority to regulate broadcast content, ruling that the agency acted “arbitrarily and capriciously,” deviating from nearly 30 years of issuing broadcast fines only for content so “pervasive as to amount to ‘shock treatment’ for the audience.”
But if the steady stream of news coverage and outcries from the American public following the Super Bowl XXXVIII incident is any indication, CBS earns highest marks for its efforts to “shock.” Jackson’s bared breast, exposed when Justin Timberlake reached for her bustier at the finale of a risqué duo performance of “Rock Your Body,” captured news headlines for weeks in early 2004. And hundreds of thousands of complaints flooded the FCC in the aftermath.
Dr. Richard Land, president of the Ethics & Religious Liberty Commission, described the court’s decision as “one more in a long catalogue of examples of our court system having completely lost touch with the country’s population.”
Defending its turf, CBS did its best to snake its way out of the fines, which were spread among 20 owned-and-operated stations at $27,500 each. The network argued that Jackson and Timberlake were merely independent agents hired by CBS and pleaded ignorance to any previous knowledge that the provocative song-and-dance would culminate in a striptease showcased for 90 million viewers.
The FCC, however, didn’t buy it. It stands to reason that CBS, as the FCC insists, was well aware of the overt sexual nature of the planned performance, which concluded with Timberlake singing, “Gonna have you naked by the end of this song.”
The need to clean up the airwaves resonates with the American people and with Congress. A 2006 law—passed largely due to an outpouring of support from pro-family individuals—gives the FCC authority to levy fines up to $325,000 per incident of indecency, a tenfold increase from its previous cap of $32,500. But under the court’s decision, such fines could soon be meaningless.
A legislative fix to return power to enforce broadcast decency to the FCC is afoot in Congress—or at least appeared to be last year. One year ago, a Senate committee approved S. 1780, the Protecting Children from Indecent Programming Act, which would require the FCC to “maintain a policy that a single word or image may be considered indecent.” Only after a push by pro-family groups and the grassroots, however, did the committee chairman—ironically a bill sponsor, Sen. Daniel Inouye (D-HI)—release the bill from committee. Now it idles on the Senate calendar.
Barring a successful appeal of the Third Circuit’s decision to the Supreme Court, S. 1780 is the only means to remove the handcuffs from the FCC to help clean up broadcast television and radio.
If you share the ERLC’s belief that broadcast television and radio should be safe for your family, please urge your senators and Senate Majority Leader Harry Reid to push for a vote on S. 1780, the Protecting Children from Indecent Programming Act.
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1 On Jul 23rd, 2008, at 9:49pm, Robert Driskell wrote:
It appears to me that Mr. Timberlake and Ms. Jackson should be the ones who are fined. It can be argued whether or not CBS knew beforehand what was to transpire at the song’s conclusion, however; it is abundantly clear who was directly involved in the execution of the debacle. I personally believe that it was a risky publicity stunt on the part of Jackson and/or Timberlake to get their name(s) into the public spotlight again. Pray for them.