In 2004 as people watched the Super Bowl in towns across America, 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 taped the game, they missed a split second of exposed skin by Janet Jackson.
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 holding in one of her chest assets had fallen away revealing a bit of something only previously shown in more detail on cable TV. And unless you were in a coma in the firestorm that followed, you had the term “wardrobe malfunction” ingrained into your vocabulary. Even attorneys and lawyers began using the term when they appeared late at court.
Here it is 2008. Children have not had to have years of counseling despite the initial claims by conservative groups that they would, and the incident is still being litigated. In July 2008, the Third Circuit vacated an FCC fine of $550,000 assessed against CBS for the nine-sixteenths of a second when Janet Jackson’s breast was exposed during the halftime show of Super Bowl XXXVIII in February 2004 and remanded the case back to the FCC. However, the court made it clear that the FCC cannot retroactively punish CBS and had better not try.
The court held that the FCC improperly departed from its prior policy of allowing a fleeting image and that this departure was arbitrary and capricious. What the ruling did not, but should of said, was that the FCC was so pressured into its fine by conservatives, including those in the FCC and the executive branch of the current administration, that it acted like idiots.
First Amendment and Constitutional Lawyers such as myself have applauded the decision especially when myself and others received moronic calls from persons claiming that they or their family members suffered immeasurable harm when they watched recordings of the halftime show over and over and over.
Conservative groups were less pleased with the ruling. However, the court ruled that, without proof that CBS knew beforehand that some indecency was about to occur, the FCC could not find that CBS was liable, especially in view of the fact that Janet Jackson and Justin Timberlake were independent contractors and not CBS employees.
To prevent the FCC from now simply providing a rational explanation for disallowing unintentional fleeting and indecent images and putting broadcasters on notice of this policy so they can fine broadcasters in the future and make it impossible to ever again dare to show a live performance on TV just as they have not dared to since the fine was imposed, the court said that unintentional broadcasts of alleged fleeting indecent images may not be punished absent a showing of scienter, i.e. a knowing or reckless violation of indecency law. If a broadcaster endeavors to exercise proper control but fails to prevent unscripted indecency, it will not have acted with scienter if its actions were negligent rather than reckless.
Thus the FCC’s attempt to establish a draconian power to fine broadcasters off the air and out of business for broadcasting unintentional fleeting images, a power which has for the past few years and which would forever absolutely chill our First Amendment rights, by this conservative administration, is over.
Perhaps with the next administration, whichever party gets into office, the idiots at the FCC who suffered their own brain malfunction and imposed this fine can be booted out into the street and be remanded to read the Constitution.
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