The Third Circuit Court of Appeals in Philadelphia was the scene of the latest indecency over the airwaves battle. CBS, which has refused to pay a 550K fine over the infamous Super Bowl halftime show during which Janet Jackson had her wardrobe malfunction, argued that there was no basis for the fine. The FCC argued otherwise. CBS had noted First Amendment attorney Robert Corn-Revere arguing its case v. the FCC’s Eric Miller. CBS is argued that it took multiple precautions to assure that the halftime show would hew to community standards of decency, that the malfunction, whether or not Jackson and her accomplice Justin Timberlake did it on purpose, was not scripted. Furthermore, the incident was isolated and was over in less than one second, putting it protection of the fleeting, isolated or unintended plank explained the FCC’s decency guidelines. The FCC countered that CBS had many warnings beforehand that there may be a problem with the show, and that other portions of the same performance were already pushing the boundaries of decency; and the "highly sexualized" aspect of the program should have been a cue for CBS to take sterner precautions.
TVBR/RBR observation: The bottom line is that the rules, as understood when the incident took place, did in fact provide that fleeting incidents are not treated with the same harshness as a prolonged and premeditated incident would be, and were generally dealt with via a simple admonition. In this case, if you blinked when the incident happened, you missed it, and in point of fact, Jackson’s exposed body part was not completely naked anyway. The bigger issue here, however, is the old ever-popular chilling effect. Are broadcasters supposed to simply cease the practice of live broadcast? Remember that it was after this incident that no less than President George W. Bush dropped an s-bomb within range of a mic. When all is said and done, the Janet Jackson incident was blown completely out of proportion, and punishing it is not worth the damage it may do to the ability to cover live events. It’s time for America to just get over it.