Overturned fine is a loss for decency

0 Comments | Deseret News (Salt Lake City), Jul 27, 2008 | by Jay Evensen Deseret News

The hurrahs emanating from television land last week were puzzling, even if they were typical for this age of irony. In the wake of a federal appeals court decision overturning $550,000 in fines against CBS Corp., for Janet Jackson's breast-baring halftime show in the 2004 Super Bowl, an official from the Media Access Project said it was "an important advance for preserving creative freedom on the air."

Here is the first thing I find puzzling:

Why is Jackson's shocker considered creative freedom worth fighting for?

As described on its Web site, the Media Access Project began in the early 1970s as an advocacy group working to allow the views of civil rights advocates and anti-war protestors on the public airwaves. Somehow, the baring of a female breast for nine- sixteenths of a second has become the ideological descendant of worthy efforts to get Mississippi television stations to stop discriminating against blacks.

Those of us who live in the "flyover states" (the ones East- and West-Coast elites fly over between stops) tend to scratch our heads at that sort of thing; just as we scratched our heads over the ruling by the federal appeals court last week. But Hollywood seems to treat flyover folks as if their collective sense of right and wrong is too anachronistic to be taken seriously.

Here is the second thing I find puzzling:

The court made a point of measuring the indecent exposure at nine- sixteenths of a second to show it as a fleeting image that didn't conform with the FCC's long-held policy that something has to be pervasive in order to be considered worthy of a fine.

But back up for a moment and consider the context in which the exposure took place. Jackson and Justin Timberlake were dancing seductively to a song called, "Rock your body." The lyrics included a promise to "have you naked by the end of this song." As CBS noted, the script didn't call for anyone to lose any clothing. But what part of the original script was supposed to be appropriate for the halftime of a family friendly football game viewed by up to 100 million people?

Here is what really has me puzzled:

Editorial writers, columnists and others are claiming this as a wise decision that, as the Denver Post put it, "is another rebuke to the puritanical bent the FCC has adopted under the Bush administration." But that isn't what the ruling said.

In fact, the court said, "Like any agency, the FCC may change its policies without judicial second-guessing." The judges objected to the FCC changing its rules without prior notice.

The court was clear that the FCC could make such a policy change, give adequate notice of it and whack the next network that crosses the line. Some people think a change in administration next year will make a difference. It may, if the new FCC head decides to ignore such things. But remember that Congress, by an overwhelming vote of 379-35, agreed to increase the fines that can be charged for indecency.

People in flyover states do vote, and they do apply pressure. Networks are more likely to protect against similar incidents in the future no matter who is president.

Finally, this four-year saga presents some interesting ironies.

One of these is that Jackson, at the time, was trying to drum up attention for an upcoming album release. Instead, as the Chicago Tribune said, "Whatever Janet Jackson does in the remaining time she has in this world, she probably can't alter the first sentence of the obituaries that will run when she departs it." And that sentence won't have anything to do with her voice.

But the biggest irony is that the FCC's battle means less with each passing day. The public airwaves are a shrinking smidgen of the entertainment pie. Case in point: You can watch the halftime show and its nine-sixteenths of a second on-demand on YouTube.

In the future, those who view junior-high behavior as creative freedom will have free rein. People with standards will have to stand on their own against the storm. That doesn't make the FCC's battle any less important. Someone with authority has to remind people that decency is important.

Jay Evensen is editor of the Deseret News editorial page. E- mail: even@desnews.com