Janet Jackson's Breast Freed, This Time by Court: Ann Woolner

Commentary by Ann Woolner

July 25 (Bloomberg) -- To understand why a woman's breast exposed on television for a half-second four years ago still lives on in legal battles, you have to grasp this notion.

It's not about the breast.

It's about an outspoken segment of the public, fed up with the debasing of American culture, persuading a federal agency to push beyond the limits of the law.

Powerless to stop bed-hopping in sitcoms or cable shows salted with most of the late comedian George Carlin's seven dirty words, groups such as Parents Television Council complain to the Federal Communications Commission whenever an expletive makes it into broadcasts.

Then came the 2004 Super Bowl halftime show, and suddenly the cause found new ammunition and new allies.

If Justin Timberlake bumping and grinding against Janet Jackson while singing that he'll strip her naked and then ripping her bodice in prime time doesn't deserve punishment, what does?

And so, the FCC succumbed to the pressure, fined CBS $550,000 for broadcasting the show and might have made it stick but for one thing.

In its eagerness to accommodate angry cultural warriors, the commission let the cause trump all else.

This week three federal judges in Philadelphia, one appointed by President Ronald Reagan and two by Bill Clinton, took 100 pages to slam the agency for ignoring its own policies and the law.

No More Shrugging

For starters, the commission fined CBS for conduct that had previously brought shoulder shrugging at the agency. For almost three decades, the FCC had refrained from punishing broadcasters for ``fleeting'' or isolated material that might be indecent.

The penalty still might have survived judicial review if the FCC had first given a good reason for reversing long-standing policy and alerted broadcasters it would now condemn that which it used to let slide.

Because it did neither, the fine was ``arbitrary and capricious,'' the court said.

When called to explain itself in court, the commission pretended there had been no policy shift.

A ``strained argument'' and ``contrary to the evidence,'' the judges wrote.

That isn't all the FCC did wrong, although that would have been enough to kill the fine. The FCC had no business punishing the network for the performance of ``independent contractors'' such as Timberlake and Jackson, the judges said.

The anti-indecency activists are outraged.

A Mockery

``Activist judges across the country are making a mockery of federal broadcast decency laws,'' the Parents Television Council declares on its Web site.

(In truth, the judges were the ones abiding by the law, previous FCC policy and court precedent.)

The ruling shouldn't have surprised anyone. Last summer a different federal appeals court in New York ripped into the FCC in fewer pages but stronger language. The panel drubbed the commission because, acting a month after the breast-baring episode at the Super Bowl, it reversed itself on the matter of fleeting expletives.

Ruling 2-1, the court pointed out how ``divorced from reality'' the FCC's arguments had become.

Just to give you one of the court's examples, consider why the FCC suddenly decided that broadcasting the f-word -- even once -- can be punishable.

The law says that to be found indecent, it isn't enough for a word to be ``patently offensive.'' The material must also ``describe or depict sexual or excretory organs or activities.''

Bono Exclamation

The FCC said that is precisely what singer Bono was doing at the Golden Globes Awards program that Fox aired in 2003.

``This is really, really, f-ing brilliant,'' Bono declared when he got an award. ``Really, really great.''

The FCC decided that Bono was using the offending word for its literal meaning, the only way the FCC seems to think it can be used.

Let's see if that works: ``This is really, really, copulation brilliant.'' So much for invoking a sexual act.

Neither that nor a host of other legal arguments made sense to two of the judges in the Bono case (a Clinton appointee and one picked by the current president).

The judges said the FCC reversed itself inexplicably when it expanded enforcement of the indecency law to cover the occasional four-letter word.

The U.S. Supreme Court has agreed to consider that issue in its next term.

Meanwhile, the anti-indecency forces were just absorbing the Janet Jackson decision this week when another one came out of the same court the following day.

Protecting Children

A different panel of three judges struck down as unconstitutional the Child Online Protection Act aimed at keeping ``material that is harmful to minors'' off the Web.

As with the Super Bowl case, those trying to protect children again forgot to follow the rules -- namely the First Amendment, ruled the judges (Clinton, Reagan and George W. Bush appointees.)

Passed a decade ago but never in force, the child protection law would criminalize the commercial posting of material perfectly legal for adults to view. We are talking not just adult entertainment but literature and art, medical information and health matters.

Technology may give us answers to all these issues. Improved filtering for computers and delayed-video broadcasts could please the anti-indecency crowd while not offending the First Amendment.

It's legitimate for parents to want to shield their kids from material they deem harmful. And you don't have to be Jerry Falwell to be troubled by the vulgarity, violence and misogyny that abounds in popular culture.

But another lesson we should teach the children is that rules matter, fairness matters and so does the law.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

Last Updated: July 25, 2008 00:05 EDT

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