A clean breast of it: Judges clear CBS in ‘wardrobe malfunction’

[1 August 2008]

By Eric Mink

St. Louis Post-Dispatch (MCT)

A federal appeals court in Philadelphia last week gave a conditional stamp of approval to Janet Jackson’s right breast, four and a half years after Ms. Jackson’s infamous “wardrobe malfunction” caused said breast to pop into view during a Super Bowl halftime show, wreaking havoc in America.

In 2004, the Federal Communications Commission, having been deluged by more than half a million breast complaints generated by at least a few dozen different people through an Internet site, declared the breast a national security threat and fined CBS and the local TV stations it owns a total of $550,000.

The agency said that the network never should have allowed the breast to escape from the breakaway leather bustier Jackson wore during a televised song-and-dance routine with a human-like device known as “Justin Timberlake.”

A subsequent forensic video analysis - which required FCC staff and interested commissioners to spend hundreds of hours reviewing recordings played forward and backward, as well as in freeze-frame mode at high orders of magnification - determined that the breast had been at liberty for 9/16th of one second.

Do not be misled by the seeming brevity of the exposure, however:

The breast, which received no advance billing, appeared suddenly at the end of the traditionally cheesy entertainment segment produced for live broadcast between halves at NFL Super Bowl games. Ratings estimates indicate that 90 million people were watching the Jackson segment on Feb. 1, 2004, during halftime of the game between the New England Patriots and the Carolina Panthers for the world championship of the middle part of North America.

Considering the size of the audience, Jackson’s exposed breast actually constituted a global threat for the cumulative equivalent of 14,062.5 person-hours - about 1.6 years. How long it can take humanity to recover from that kind of punishment is, literally, anyone’s guess.

Yet the July 21 ruling of a three-judge panel of the U.S. Court of Appeals for the Third Circuit ignored the injuries that the sight of Jackson’s breast inflicted on 90 million viewers, including countless people who to this day remain unaware of their suffering.

Indeed, the court expressed no opinion about the breast at all, either qualitatively or quantitatively. Nor, for that matter, did it reach a finding on one of the most controversial aspects of the case: the aesthetic value of the metal star decoration that was affixed to the breast with a pin and visible for the entire 9/16th of a second (i.e. 1.6 years).

Instead, these judges apparently decided that they serve as elements of the American legal system. In other words, they took it upon themselves, as sitting jurists of a federal appeals court of law, to oversee a legal proceeding and fulfill their sworn duty to evaluate whether a government agency had acted legally when it declared that a corporation had violated the law and imposed a significant financial penalty for the violation.

The unfairness of the proceedings fairly leaps off the pages of the 102-page decision.

The record indicates that the FCC filed all the necessary papers within all the specified deadlines, timelines and general time horizons. The agency argued, in great detail, that CBS and its stations had violated the rules. It argued that Jackson and “Timberlake” were CBS employees. It argued that CBS intentionally avoided exercising responsibility for their employees’ on-air conduct.

After CBS pointed out that most of these arguments were false, the FCC didn’t give up; it invented new, albeit equally false, arguments to try to fit the actual facts of the situation. And when CBS responded that the rules cited by the FCC didn’t exist when Jackson’s breast ran amok on Feb. 1, 2004, the FCC came back with a withering counter-argument: “Yes, they did.”

We might forgive the court for leaving to the medical community an assessment of the damages suffered by 90 million people as a consequence of exposure to the sight of a breast on television. We might overlook the court’s timidity about venturing into the realm of fashion and breast ornamentation.

But there is no way to excuse the federal court’s fundamental failure to accept the FCC’s contentions on their face. Instead, it acquired evidence that established the agency’s misstatements, misrepresentations and duplicity and then, based on that evidence, threw out the FCC’s finding and fine against CBS.

The key issue revolved around the issue of “isolated or fleeing” examples of indecency. Here’s an example cited by the court:

On Jan. 19, 2003, Bono, the lead singer of the Irish rock band U2, accepted an award for the group on the live NBC broadcast of the Golden Globe awards ceremony. “This is really really f - -ing brilliant,” he said. People complained, but the FCC’s enforcement bureau reiterated the agency’s long-standing policy to not rule against broadcasters for isolated or fleeting instances of indecency.

Actually, this is a terrible example. The problem with Bono’s comment wasn’t indecency; it was insincerity. Everyone knows - and Bono’s a smart guy - that the Golden Globes are bogus. However, existing statutes, FCC regulations and court precedents permit insincerity on the air (e.g. pharmaceutical ads, political ads, local news promos).

In any case, the full FCC commission reversed course on March 3, 2004, declaring that its previous policy on isolated and fleeting violations was “no longer good law.” From then on, the agency would pursue all instances of alleged indecency, whether isolated and fleeting or abundant and extended.

But when it came to CBS and Jackson’s breast - the incident took place a month before the FCC went public with its change of policy - the FCC kept claiming that it hadn’t changed its policy at all. The problem was that the FCC had made all sorts of public statements and declarations, including official filings in other court cases, that it had changed its policy. Oops.

The judges of the Third Circuit Court of Appeals apparently concluded they couldn’t ignore the little discrepancies that were strewn all over the public record. Its ruling last week said that the FCC was free to change its policy but that it wasn’t allowed to take actions based on the new policy until it first told people that the policy had changed and why. As of Feb. 1, 2004, the FCC hadn’t done that, so the court said the actions against CBS and Jackson’s breast were “arbitrary and capricious” and null and void.

Null or void, fine or no fine, Jackson’s breast did its damage more than four years ago, and nothing can put that right. In the future, however, broadcasters are on notice: No more hiding behind the “isolated or fleeting” excuse - or a leather bustier, for that matter.


Eric Mink is commentary editor for the St. Louis Post-Dispatch. Readers may write to him at emink AT post-dispatch.com.

Published at: http://www.popmatters.com/pm/article/a-clean-breast-of-it-judges-clear-cbs-in-wardrobe-malfunction/