Arts & Ammo

Preserving Creative Freedom

The Third Circuit Court of Appeals has thrown out the fine levied by the FCC against CBS for Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl halftime show.

Andrew Jay Schwartzman of the Media Access Project, which filed a friend-of-the-court brief on behalf of a group of TV writers, directors and producers, said the ruling “is an important advance for preserving creative freedom on the air.”

Creative freedom to do what? Have a malfunction? It’s hard to buy that excuse:

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, “Gonna have you naked by the end of this song,” as he reached for Jackson’s bustier.

And apparently Janet Jackson had planned the stunt:

The FCC had argued that Jackson’s nudity, albeit fleeting, was graphic and explicit and CBS should have been forewarned. Jackson has said the decision to add a costume reveal—exposing her right breast, which had only a silver sunburst “shield” covering her nipple—came after the final rehearsal.

Silver sunburst shields – worn by performers everywhere in case their other garments accidentally fall off. No, the wardrobe functioned as planned.

The creative content of a Jackson’s breast – what artistic insight, what bold juxtaposition of forms, what an amazing dime-store trinket covering the areola!

But our illustrious court of appeals missed the significance of this creative breakthrough and held Jackson’s breast (so to speak) artistically mundane – so mundane that CBS didn’t have sufficient warning that flashing it on national TV during the most watched “family” event of the year might be considered indecent. The FCC, according to the court, deviated from its 30-year practice of only fining for events so “pervasive as to amount to ’shock treatment’ for the audience.”

The event was intended to shock, to stick a thumb (or whatever) in the collective eye of the unfortunate masses in flyover country, clinging to their religion and false modesty.

But our sophisticated judges were not shocked, and they don’t think the rest of us were either, even though the event was reported that way at the time and still commands significant attention more than four years later.

Rest assured that it will be harder to shock us in the future (although those who hail this decision as “preserving creative freedom on the air” will try their best) and that the courts will continue to ratchet standards of decency ever downward.

July 21st, 2008 Posted by Fitzroy | Law | one comment