Monday, July 21, 2008

Wardrobe malfunction OK'd by appellate court

Some good news today for free speech, as the US Third Circuit Court of Appeal -- which covers Delaware, Pennsylvania, New Jersey and the Virgin Islands -- overturned the FCC's $550,000 fine in the 2004 so-called "wardrobe malfunction" incident (applied to the 20 stations directly owned by the network), saying that the fleeting nudity which lasted less than a second could not have been construed as obscene. It also criticized the FCC's claims that it had received hundred of thousands of complaint letters, pointing out an honest audit showed 85% of them were form letters from single interest groups and that some people complained as many as 37 times.

In any case, the court said, CBS could also not be held responsible for a show that was independently produced by its sister company, MTV; nor could it know in advance the stunt that Justin Timberlake and Janet Jackson were going to pull on live television. Had it been on tape, it would have been of course a different story to argue.

No doubt right wing groups will crow that this proves the need for a time delay of a few seconds to censor "obscene" content. But obscenity is in the eye of the beholder and most people, the vast majority didn't see what the big deal was. We're talking 9/16 of a second here. And it wasn't even a bare breast, Janet was wearing a nipple ring for heaven's sake!

If you put tape delay on sporting events that gives crooked bookies and even legitimate gaming houses in Las Vegas the chance to manipulate betting lines on the go. And if you tape delay that, then you have to do the same for news events -- and we've seen how the White House and right wing consultants such as Hill and Knowlton manipulate the media and the rest of us through those so-called "video news summaries."

If the fine is reinstated by the Supreme Court (and who knows how these things work), it should be the people responsible for committing the act in the first place -- Jackson and Timberlake -- who pays the fine, not CBS or MTV. All in all, however, a victory for free speech. We should expect the unexpected on Super Sunday and it's time for the prudes to lighten up. If this was done at the halftime show of the World Cup Soccer final, after all, no one would give a damn.

Certainly not in the States, where the recent Euro 2008 final got a 3 rating -- meaning 3% of households watched. Compared to Europe, where a "game of the week" routinely gets an 80 rating.

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