CBS Janet Jackson’s Super Bowl Halftime Wardrobe Malfunction Is Okay: An FCC Brain Malfunction

In 2004, as people watched the Super Bowl in cities across the United States, 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 tapped into the game, missed a split second of Janet Jackson’s exposed skin.

It wasn’t until the press and people played it in slow motion that they saw what people would say later that horrified them. One of Janet Jackson’s upper body supports that supported one of her chest assets had fallen off, revealing a little something previously only shown in more detail on cable TV. And unless she was comatose in the firestorm that followed, she had the term “wardrobe malfunction” ingrained in her vocabulary. Even lawyers and barristers started using the term when they were late in court.

This is 2008. The children have not had to receive years of counseling despite initial claims from conservative groups that they would, and the incident is still being litigated. In July 2008, the Third Circuit vacated a $550,000 FCC fine imposed on CBS for the nine-sixteenths of a second when Janet Jackson’s breast was exposed during the Super Bowl XXXVIII halftime show in February 2004 and returned the case to the FCC. However, the court made it clear that the FCC cannot retroactively punish CBS and that it had better not try.

The court held that the FCC improperly departed from its previous policy of allowing a fleeting image and that this deviation was arbitrary and capricious. What the ruling did not say, but should have said, was that the FCC was pressured so much 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 like myself have applauded the decision, especially as I and others received silly calls from people claiming that they or their family members suffered immeasurable harm by watching the halftime show tapings over and over again.

Conservative groups were less satisfied with the ruling. However, the court ruled that, without evidence that CBS knew in advance that indecency was going to occur, the FCC could not determine that CBS was liable, especially in light 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 rationale for not allowing unintentional fleeting and indecent footage and putting broadcasters on notice of this policy so that they can fine broadcasters in the future and make it impossible to dare to show again a live performance on television only As they have not dared to do so since the fine was imposed, the court said that unintentional broadcasts of allegedly fleeting indecent images cannot be punished in the absence of a demonstration of scienter, that is, a knowing or reckless violation of the indecency law. If an announcer strives for proper control but fails to prevent unintended indecency, he will not have acted scientiously if his actions were negligent rather than reckless.

Therefore, 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 it has had for the past few years that would forever freeze our rights to the First Amendment, by this conservative administration, is over.

Maybe with the next administration, whichever party takes office, the idiots at the FCC who suffered from their own brain malfunction and imposed this fine can be kicked out on the street and forced to read the Constitution.