Redress of grievance
Reversal of ‘wardrobe malfunction’ fine was right decision
The following editorial appeared Tuesday in the Chicago Tribune.
Whatever Janet Jackson does in the remaining time she has in this world, she probably can’t alter the first sentence of the obituaries that will run when she departs it. Unless she becomes a serial killer or a Nobel Peace Prize winner, she will forever be remembered for her bare right breast.
It inspired the now-universal term “wardrobe malfunction,” a creative way of describing the incident at the 2004 Super Bowl halftime show when fellow pop singer Justin Timberlake yanked at her costume, providing a brief, partial glimpse of her upper torso.
We do mean brief – the flash of skin was over in exactly nine-sixteenths of a second. But for exposing football fans to that momentary image, the Federal Communications Commission came down hard on CBS, which broadcast the event. It found the network guilty of airing “indecent” material and levied a fine of $550,000.
As a federal appeals court recognized Monday in throwing out the fine, the decision was a gross overreaction to an obnoxious but unscripted display. The fine punished the wrong party, since CBS had no knowledge of Timberlake’s intention and, in fact, had sent representatives to rehearsals to make sure nothing was out of line.
In imposing the fine, the FCC retroactively applied a Draconian new policy on words and images that are indecent but fleeting, which the agency had previously tolerated. It was “arbitrary and capricious,” the court said, for the agency to “change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”
The FCC penalty also greatly exaggerated the harm done by the incident. No one was scarred. For anyone who merely saw the show live on TV, the flash was over before it had even registered in the brain.
The court spent much of its opinion refuting the FCC claim that Jackson and Timberlake were the functional equivalent of network employees, which it said made CBS liable for their conduct. It concluded that, in reality, they were independent contractors. If the government is going to punish the network for their expressive conduct, the court found, it has to prove CBS knew what they were planning or recklessly ignored the possibility.
Federal action was not needed to protect viewers, because CBS, embarrassed by the episode, promptly took steps to prevent a repetition.
By the 2005 Super Bowl, a video delay was in place to catch anything inappropriate, and the halftime performer was 62-year-old Paul McCartney, who is famous for keeping his clothes on. And even he had to submit his song lyrics for rigorous inspection.
The FCC lost this battle, and it’s likely to lose again if it persists. But that’s no defeat for viewers. As long as they have remotes in hand, they have the crucial say in what CBS and other networks put on the screen.