Janet Jackson's Wardrobe Malfunction Leads To FCC Malfunction: Claims Broadcasters Give Up 1st Amendment Rights
from the fcc-malfunction dept
Would you believe that the FCC, CBS and the courts are still fighting over the FCC's right to fine CBS over Janet Jackson's infamous "wardrobe malfunction" during the half-time show of the Superbowl in 2004 (yes, seven years ago). There have actually been a series of related cases bouncing up and down through the court system, trying to establish whether or not the FCC's policies on "fleeting expletives" or "fleeting nudity" are arbitrary and if they violate the First Amendment. A court had originally found the FCC's policies to be arbitrary and tossed them out. The Supreme Court, in a related but different case (focusing on the fleeting expletives), ruled extremely narrowly that the FCC was allowed to change its policies, but did not rule on the constitutionality of the policy itself. The Second Circuit appeals court then ruled that even if the rule change was allowed, it still violated the First Amendment. From that, the court then asked -- if such rules on fleeting expletives are not allowed -- does that also cover fleeting nudity -- but that involved a separate case involving a scene of a bare rear end on NYPD Blue. But, of course, the Janet Jackson case, in the Third Circuit, also is relevant here as well.Which brings us mostly up-to-date, other than the latest news in the Janet Jackson case, which is that the FCC is now trying to claim that broadcasters give up some of their First Amendment rights when they get a government license to broadcast over public airwaves. This seems like a huge stretch as a legal interpretation, which would have serious implications for anyone using public airwaves. I don't recall the First Amendment saying "Congress shall make no law... except if it involves public airwaves." Either way, as the article linked above notes, this will all be going back to the Supreme Court eventually.
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Filed Under: first amendment, free speech, janet jackson, obscenities, wardrove malfunction
Companies: cbs, fcc
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Only seven years?
And before anyone asks, I have three children (9, 7, and 4) so I absolutely understand what it's like to parent children.
The free expression of Janet and Co. is more important than the hardship of monitoring TV for my kids (not that seeing her chest was any more harmful than seeing mine was).
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Re: Only seven years?
Also, stop leaving the door open while singing sea shanties in the shower..
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Re: Re: Only seven years?
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Re: Re: Re: Only seven years?
Sounds better than chanting 'are we there yet' (guilty).
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It's not a new idea
See this excerpt from his "Technologies of Freedom" book at http://books.google.com/books?id=BzLXGUxV4CkC&pg=PA2&lpg=PA2&dq=ithiel+de+sola+pool+doma in+of+print&source=bl&ots=8FmrfnXjDt&sig=sNj8FAfkMIsmsgEjwSD6zzkoI5Y&hl=en&ei=ot AbTbjMKpP4sAPm3_W3Ag&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCIQ6AEwAA#v=on epage&q&f=false
I agree with you that it's not a good thing, and the FCC is being completely absurd in its insistence on censoring, but it does have some precedent to look to in support of it.
(BTW, I hope I get bonus points for remembering something I read as an undergraduate...)
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Re: It's not a new idea
On the receiving end, there is no technical reason why you can't have the channels you don't like be excluded (this was true decades ago and is sure true today).
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Re: Re: It's not a new idea
Personally, I don't care if my children hear expletives. They are a NORMAL PART OF SOCIETY, and everyone over the age of 12 (and usually before that) uses them.
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Public airwaves
Trying to find loopholes to get around the First Amendment should be met with absolute outrage, specially when it comes from the people who represent "the public" as in the case of the FCC.
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Re: Public airwaves
</pedantic>
You should use some visual analogy instead: when we gesture, we are using the "public airwaves", since light is also an electromagnetic wave.
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Re: Re: Public airwaves
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Awesome dude!
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Red tape
The problem is that often the regulations surrounding these licenses are simply over-broad, arbitrarily applied, or just simply aren't coherent to the people trying to follow them.
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Re: Red tape
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Re: Red tape
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Re: Re: Red tape
There doesn't need to be. That technical limitation was overcome long ago. The only reason they're "limited" now is to give the government a reason to regulate.
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Re: Re: Re: Re: Red tape
> power level from any location, it would (possibly) become difficult
> to tune in any station, would it not?
The point is that there are a practically infinite number of discreet broadcastable frequencies now, so the spectrum isn't limited in any real sense anymore.
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Re: Red tape
You mean that the right to sell liquor, run slots, and fix my toiler are guaranteed by the Constitution? AWESOME!
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It isn't really a first amendment issue because they are not curtailing legal speech. Obscenity has always been considered non-protected speech, and the community standard as applied by the FCC is very low. No swearing, no nudity, etc permitted, particularly before typical bedtime for younger children. While there has been some tolerance for programs on after 9 or 10 at night, it is still pretty tight in the world of broadcast TV.
The best example would be setting up a soapbox and using a megaphone to shout obscenities in the middle of a public street (on the sidewalk, so you don't obstruct traffic). You would likely be arrested for disturbing the peace, but you are more likely to get stopped if you are using obscene language.
Try playing porn movies on a video screen that can be seen by the public (say your store window). It would not be long before the TVs would get shut down and you would likely be arrested.
While porn in and of itself is legal (one recent AG refered to it as protected speech in some cases), it is not universally protected speech, as we are not permitted to disseminate it in a way that it can be seen by minors. In the same manner, broadcasters are not permitted to disseminate the material.
The FCC taking it to the max (fleeting cursing or accidental or fleeting nudity) likely cause the courts to rule against them. Extreme positions like the FCC has taken are almost entirely impossible to protect against, and cause no more or no less harm than your child hearing your neighbor cuss or catching a fleeting glance of a boob when some girl at the beach has a bikini malfunction.
Sadly, the US constitution has been interpreted as a series of absolutes, often entirely bizarre. It is why in order to preserve your free speech rights, you have to support the KKK, Westboro's God Hates Fags, and Glenn Beck's right to exist - at least when it comes to free speech issues.
Good luck with it.
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Re:
It isn't really a first amendment issue because they are not curtailing legal speech. Obscenity has always been considered non-protected speech...
Janet Jackson's boob isn't obscenity as defined by the Supreme Court. Neither are expletives, fleeting or otherwise.
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Re: Re:
For purposes of a broadcast television, the definition of obscenity is much lower, as the community is all potential viewers including children. It could be argued under the Miller test that in fact those things are obscene.
oh, and you can keep your tl;dr to yourself. I take the time and care to read your comments, you should at least have the respect to do it for others as well. I wouldn't expect such rudeness from a teacher.
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For instance, Oklahoma's community standards don't allow the sale of penetration porn to anyone. It's 'obscene'. That doesn't mean that we think that non-penetration porn is okay for children, it simply means that we don't believe that it's obscene, via Miller.
In short, community standards don't change based on who might be watching. If a boob is obscene on television in that area, then a boob is obscene anywhere in that area, and strip joints and the sale of Maxim should immediately cease.
Oh, and you can take time and care with whatever you like, and I'll do the same, including just picking out an interesting bit when I see it. You don't get to dictate what I should and shouldn't do, even concerning your comment. I wouldn't expect such rudeness from an Anonymous Coward.
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Community is just that. The people who view broadcast television includes minors. Thus, minors are part of the community, and community standards essentially draws thing down to the lowest level of obscenity possible.
Community standards are exactly about who is watching, which is why a porn video that is obscene in certain areas (like Salt Lake City or parts of Florida), are not obscene in New York or Los Angeles. The definition of community is slippery.
If a boob is obscene on television in that area, then a boob is obscene anywhere in that area, and strip joints and the sale of Maxim should immediately cease.
You fail to understand the basic difference between broadcast and selective viewing. You can buy (and enjoy if you like) a porn movie in most places. You can even see frontal nudity on Skinimax if you like. However, you cannot broadcast that on the public airwaves, where it can be viewed by anyone including children. The difference is pretty simple and pretty clear.
Oh, and Maxim isn't obscene anywhere, as there is no nudity. There is titilation, but no more than you can see on the average public beach. You might want to use something like Playboy for an example, it would make much more sense. And yes, Playboy magazines are often forced behind blocking walls or entirely forbidden by ordinance in many communities, as they feel it is not up to their standards.
Ever wonder why in many places adult bookstores are in the middle of nowhere? Often they are lurking just outside of county or city lines, because that area does not permit adult material to be sold. Yet, adult material is protected free speech. Amazing how that works, right?
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You're suggesting some people should have free speech, and others should not? Or that some ideas are so unpopular we should not allow them to be expressed?
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> the citizens, including those under the age of 18.
It shouldn't. There's no reason whatsoever that the FCC needs to be involved in managing content. Frequency allocation and other technical issues, sure. But the content should be off limits to government meddling.
The last thing we need is yet another group of bureaucrats deciding what's good for us.
Here's a thought-- why don't we decide for ourselves what's in our best interests?
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Re:
> and the community standard as applied by the FCC is very low.
Nothing the FCC regulates in this context meets the legal standard for obscenity. Mere swearing or nudity is not obscene, per the Supreme Court. Even hard core porn isn't generally obscene. Obscenity is reserved for things like bestiality and child pornography.
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Rights
That is this idea the 'entity' can 'give up thier rights by doing x'. I'm sorry but that is complete and total BS. The only thing that can cause a person to lose their rights is the committing and conviction (via a fair trial) of a crime.
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Broadcasting and the First Amendment
This state of affairs may be antiquated, unfair, or whatever, but it's not news and it's not a figment of the FCC's imagination. In other words, it's not, as you put it, that "the FCC is now trying to claim that broadcasters give up some of their First Amendment rights"; that "claim" is established and settled law. The dispute is over the boundaries of the FCC's control, what kinds of speech they can restrict, when they can levy fines, etc.
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Re: Broadcasting and the First Amendment
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Janet
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FCC
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