The U.S. Department of Justice is asking the Supreme Court to review November’s appeals court ruling deny the FCC’s right to fine CBS for Janet Jackson’s too-quick-to-be-seen-by-the-naked-eye naked nipple during the 2004 Super Bowl half-time show.
To put this in perspective: they’re still litigating over an incident that occurred (for a fraction of a second) when gasoline was $1.83 a gallon… American Idol was the #1 television program (okay, bad example: Friends was the #2 television program)… and Barack Obama was an unknown local Illinois politician.
November 2, 2011: Appeals Court Rules (Yet Again) on Janet Jackson’s Wardrobe Malfunction
Today, the 3rd Circuit Court of Appeals reaffirmed its 2008 decision that the FCC should not have fined CBS $550,000 for the brief exposure of part of one of Janet Jackson’s breasts during the 2004 Super Bowl.
So the question is, why are the FCC and CBS still picking at this bone more than 7 1/2 years after the fact? Surely each side has already spent far more than $550,000 on legals fees. “It’s a matter of principle” doesn’t work here because laws change, standards change, and administrations change, so establishing precedents is fairly meaningless.
Just for the record, this is what was actually exposed, freeze-framed and in super close-up (and therefore Not Safe For Work). Below is a video of the actual half-second exposure. To be safe I should label it NSFW as well — but in reality the whole thing was so quick and filmed from such a distance that most people watching at the time had no idea what had actually happened (even if they remember it differently after the fact)
More on today’s decision
© 2012 by Bill Bickel unless otherwise noted.
What’s actually at stake is way more than a half-million dollar fine. For one thing, each broadcaster who broadcast the image is liable for a fine… both the stations that CBS owns, and the ones it doesn’t, but are merely affiliated. CBS almost definitely has an indemnity clause in its affiliate contracts that requires CBS to contest fines created by network-supplied programming.
At issue is the fact that the exposure, while probably preventable, was not intended. If the cost in the future is a half-million per accidental slip, then live broadcasting becomes too risky and nothing will ever be broadcast live again. This is familiar territory to radio, where live callers have to be warned to turn off their radios, because hearing something live AND delayed causes exceedingly amusing speech from people who aren’t expecting it. Anyway, the network would not like to have a pricetag of $500,000 on a mistake, and is fighting to have that pricetag removed from any and all future mistakes. I would guess that the NAB, the National Association of Broadcasters, is helping CBS with the legal expenses.
The FCC, on the other hand, is charged with creating, maintaining, and enforcing regulations on broadcasting to serve the public interest, necessity, and convenience. If the court throws out its rulings, then they have to go back and write new ones, AND its enforcement power is diminished.
British television has had nudity on it since the days when Monty Python was created, and while even the most loyal of Brits must admit that the Empire has declined a bit from its heyday, it has not yet collapsed into barbarity, except for the odd football riot.
The delay in radio is no more than a second or two, too short for censoring purposes. That’s just the natural time delay due to processing and transmission times, added to the telephone signal delay.
Radio shows that have live callers put them on either a 7-second delay or a 15-second delay, and a producer has a finger on a button that prevents the audio from going out on air.
But you said “nothing will ever be broadcast live again”, and I don’t think that’s the case in radio.
In radio, they will broadcast live if they can carefully control everything that might go over the air… so if you just have one DJ playing “records”, that one DJ knows what they’re not allowed to say (thanks for your help, Mr. Carlin) and that can go live. If they have call-in guests (or even some live guests) they go to delay, which is not “live”.
Now, networks newscasts are generally produced in a studio but local news LOVES to go live to the field to cover things… but if some dude streaks your live remote, you pay $500,000: how many live remotes will you be doing? The morning news programs like to go out on the street… they often pan across the fans who’ve come down to the studio with their signs… some chick flashes the camera as it pans, it costs you $500,000: how many live shots of the fans will you be broadcasting? During sports coverage, they often show shots of the crowd during breaks in the action… some dude wants to show you more of his team-color paint job than the FCC allows, $500,000. Would you still broadcast the game live? Heck, you get some nutty halftime entertainment who… you get the idea.
TV stations will squawk about a $5,000 fine, but they’ll pay it. Make the states $500,000, and they’ll have to change the way they operate.
Look, I’ve heard call-in shows, and I’ve heard guys have their radio on, and I’ve heard the delay as far too short to work for censorship purposes. And it wasn’t that long ago. I don’t know what else to tell you.
Read this, and tell me what you think: http://en.wikipedia.org/wiki/Broadcast_delay
I had hands-on experience with this equipment in the late 1980′s, when I was a broadcasting major (between being a business major and public, group, and interpersonal communication.)
They do it because the FCC wants to make sure that the letter of the law prevails over common sense, so they can keep on dishing out fines to smaller broadcasters who can’t afford to fight back. (Common sense being that networks can’t control the actions of all individuals on a live broadcast.) They also want to make it very clear that appealing their unilateral rulings will be prohibitively expensive for those smaller broadcasters. d
Except that networks CAN control, and DO control, what everybody does and says on their broadcast… the same way radio broadcasters do… with a delay. It’s just expensive and presents a couple of technical challenges they’d just as soon not bother with.
He sings “I’ll have you naked by the end of this song” and then he strips off the cover and then the song ends. How can this not be what the choreographer intended?
As I recall, Mark, he pulled off one layer past what they’d planned. I mean obviously they didn’t intend to actually strip her naked on live television.
I’m just cynical enough to believe that they (at least Justin and Janet) did intend it to go off *exactly* as it did.
If so, she’s the greatest actress in the history of pop music. That has always looked, to me, to be genuine shock on her face.
You realize that Janet WAS an actress before she became a musical performer, right?
All this whole charade proves is that American attitudes toward nudity (and sex) are hopelessly screwed up.
I’ll admit we weren’t sure exactly what happened, but the host of the Super Bowl party I was attending fortuitously had DVR, so we were able to rewind it and verify what we thought we might have seen.
The most Tivo’d second in television history.
Janet’s nipple has a longer career than the rest of her.
I heard a Janet Jackson song on the radio yesterday about it … “Promise of a Nude Day”.
(That was sarcasm; don’t post any replies saying that wasn’t the name of the song.)
Did they follow that with “Nasty”?