Can we just call this “The Breast That Wouldn’t Die“?
In what seems to be the longest ever conversation about a woman’s nipple, the 3rd U.S. Circuit Court of Appeals yesterday overturned the Federal Communications Council (FCC) $550,000 fine against CBS for the 2004 Janet Jackson nipple exposure during the Super Bowl. Ars Technica has one of the bust summaries of what exactly the court said:
The court not only calls the new policy “arbitrary and capricious,” but held that CBS was not responsible for the actions of the dancers: Jackson and Justin Timberlake. “Both performers were acting as independent contractors for the limited purpose of providing entertainment services for one isolated, brief program,” the justices ruled.
In the end, the court ruled that CBS did its best to control Jackson and Timberlake’s performance within the context of its independent contractor relationship with the two performers. “When a broadcaster endeavors to exercise proper control, but ultimately fails, to prevent unscripted indecency, it will not have acted with scienter [knowledge of deliberate wrongdoing],” the justices argued, “if its actions were negligent rather than reckless.”
Needless to say, CBS is thrilled, the FCC, not so much. The FCC will be sticking to their guns and attempting later this year to argue to the Supreme Court that they need tougher restrictions and even more indecency laws. I would normally put a quote here, but it comes from an Associated Press story, and the AP is now looking to charge bloggers a $1.50 per word to quote them. (no… I am not kidding)
Not one to be dissuaded by courts, the Parents Television Council (PTC) has waded in on this issue. In a statement on their website, they claim that this ruling was an example of “activist judges across the country are making a mockery of Federal Broadcast Decency laws”. Well, I’m not quite sure how the above listed judgment, which spelled out how they reached their decision that CBS was not at fault for the actions of third parties, equates to “activist judges”. Oh, wait… does that mean they activated their brains and actually interperted the law?
Apparently “activist judge” has come to mean “any judge that makes a ruling I don’t like”. While the incident was unfortunate, I’ve thought the fine was excessive since the day it was issued, and I have also thought the fining of CBS out of the whole mess was just silly. MTV produced the show, the NFL approved it, CBS was merely the company to air it, they were not part of the production. Never let something like facts get in the way of the PTC though and their fear mongering ways. Hopefully the Supreme Court will keep it’s head when they look into the issue this year, but who knows what will happen.
Until then… “activist judges” for the win!