As recently as a few days ago, the 3rd Circuit Court of Appeals has been considering an appeal from CBS over a $550,000 fine with from the Federal Communications Commission after Janet Jackson’s “wardrobe malfunction” during the Super Bowl a couple of years ago. CBS has a relatively compelling argument: that the FCC has generally held that “fleeting, isolated, or unintended” images aren’t punishable by excessive fines and that the on-air incident wasn’t CBS’s fault — the network didn’t know what Jackson and Justin Timberlake were going to do.
The FCC, obviously, disagrees with the arguments, and time will tell if the 3rd Circuit is persuaded, but in the meantime, TNR’s Michelle Cottle raises a very persuasive point: if the FCC is really concerned about “indecency,” they should care less about a momentary glimpse of Jackson’s breast and more about “O.J. Simpson regaling Americans with a detailed tick-tock of how he would have killed his ex-wife and her lover.”
Talk about televised obscenity. How can a half-second glimpse of even the most heaving bosom possibly compare to a lengthy sit-down with a man who, criminal acquittal notwithstanding, is widely believed to have committed the brutal murders he (hypothetically) describes in both his filthy little book If I Did It and the related, now-defunct Fox infomercial/interview? Glamorizing fake violence is one thing. Inviting some ostracized, attention-starved freakshow of a former football star not simply to get a cheap thrill but also to substantially profit (rumor has it that the Juice was paid $3.5 million for the whole shebang) from publicly wallowing in the details of a shockingly vicious crime that he may or may not have committed is beyond obscene. It is grotesque. […]
What’s more, unlike CBS’s boob problem, it’s not as though O.J.’s (hypothetical) confession were an accidental or inadvertent obscenity. The interview was pretaped, not live, and based on an equally vile manuscript that had been floating around for longer still. Fox execs knew precisely what sort of filth they would be serving up to viewers, and they obviously did not care — at least, not until the widespread public backlash made it clear that this wouldn’t be the juicy ratings bonanza the network had banked on.
That’s a good point.
Cottle doesn’t really believe the FCC should crack down on the O.J. interview or the Super Bowl halftime show, and neither do I. But the point is, if the government is really going to regulate broadcasts in search of offensive conduct, isn’t the for-profit description of a heinous, real-life murder by the man accused of committing the crime far less decent than a fleeting shot of a woman’s left breast?
Indeed, let’s reconsider CBS’s defense in the Jackson case and apply it to Fox’s consideration of the O.J. interview for sweeps. The Jackson incident was “fleeting, isolated, and unintended”; the O.J. program was an intentional, nauseating, and hour-long offense. CBS didn’t know in advance that the Jackson image was part of the Super Bowl act; Fox knew exactly what it was buying with If I Did It.
Ideally, the FCC would leave both alone, but if the agency is going to tackle one, it’s picked the wrong one.
For all its hyperventilating over the occasional dirty word or bare boob that sneaks its way onto our television sets, the FCC is in no position to tackle some of the truly objectionable fare that, like this O.J. interview, could land them in an ugly free-speech squabble. As repulsive as I find Fox’s actions, the network — and HarperCollins, which published the book, and perhaps even O.J. — have a constitutional right to peddle this sort of filth. Consumers, in turn, have a right to completely freak out and make Rupert Murdoch’s media empire very sorry for this particular breach of common decency. (Now how about we do something about “Trading Spouses: Meet Your New Mommy”?) Not every public affront must be dealt with by the government. In this case, the public proved capable of handling the situation itself.
If only the FCC had the sense to take a similarly hands-off attitude toward Jackson’s boobs.
Agreed.