Janet’s Anatomy Comes to Philaddelphia

It is enshrined forever as the most memorable — and expensive — nine-sixteenths of a second in the annals of professional sports: the instant in which Justin Timberlake exposed Janet Jackson’s right breast to a gazillion gaping Super Bowl fans. Never mind that at any moment of the day or night, on any computer (or Blackberry or phone) with an Internet connection, anywhere in the world, anybody of any age can view all the pornography his little heart desires. The Federal Communication Commission nonetheless fined CBS more than a half-million bucks for indecency. That fine works out to about one dollar for every complaint the network received in the wake of Jackson’s “wardrobe malfunction.”
On Tuesday, September 11th — ironically the sixth anniversary of a series of unprecedented terrorist attacks, which truly were obscene — this Super Bowl circus came to Philadelphia. The U.S. Court of Appeals for the Third Circuit, which sits in a courtroom in the federal complex at Seventh and Market Streets heard arguments in the TV network’s appeal of the FCC penalty.
Law junkies and pundits speculated that CBS engaged in so-called “forum shopping” in bringing its plea to Philly. As a Delaware corporation, the company was entitled to take its case either to the District of Columbia circuit court, which sits in the national capital, or the Third Circuit, which has jurisdiction over federal appeals in New Jersey, Pennsylvania and the First State. If so, then the network’s pick probably paid off. In the words of one observer, the three-judge panel appointed to hear the case was “pretty liberal.” Judges Julio Fuentes and Marjorie Rendell (yes, Governor Ed’s better half) are Clinton appointees, while Chief Judge Anthony Scirica, a Reagan Republican, is reputedly sensitive to corporate concerns.
Speaking as one who’s been there and done that, I can tell you that an oral argument before a panel of federal judges can be a lively experience. Although the lawyers have already submitted briefs (which are anything but brief), they also meticulously prepare oral arguments. They try to anticipate the questions which might be asked by the judges, who have no reluctance to interrupt the most eloquent oral presentation. A so-called “hot” court can give the attorneys a very brisk working-over.
Media reports indicate that these three judges asked numerous “pointed” questions about the network’s control over the performers and about the possibility of doing a video-tape delay in lieu of a live, up-front-and-personal performance. Concerning that latter point, the FCC contended that CBS could easily have instituted the delay technique, since the method was inaugurated only a week later for the Emmy Awards. CBS, all innocence, countered that the show’s producer and director had no reason to anticipate an incident.
Concerning the “control” issue, counsel for the commission contended that CBS enjoyed considerable power, as proven by its editing of a Kid Rock interview in which he mentioned driving a Lexus. Cadillac was a Super Bowl sponsor.
Now the matter rests with the judges, who likely will take three to six months to issue an opinion and a decision. Meanwhile, one might well wonder if this is much ado about nothing. Even worse, is this in the final analysis a win-win for CBS and the two singers, regardless of the case’s outcome?
In a market environment where advertisers spend millions of dollars for mere seconds of Super Bowl exposure, what is $550,000 in the grand scheme of things? The network’s legal fees will surpass the fine by a factor of three or four, I predict. The Third Circuit appeal has enabled the network to continue garnering free publicity. As Senator Huey Long said so many decades ago, there’s no such thing as bad publicity so long as they get your name right.
For the team of Janet and Justin, this is all to the good, too. Who of the hundreds of millions of viewers would even recall that these two had performed, were it not for that nine-sixteenth of a second? The incident has done more to keep their careers alive than has their modest amount of total talent.
Meanwhile, tax payer dollars — your dollars and mine — are used provide CBS with so-called “justice.” As for the FCC, one might well wonder what kind of a dinosaur agency it is: while the Internet offers intimate activity between and among participants of all races, orientations and species, this pathetic example of Washington bureaucracy at its worst wastes its time and budget helping CBS, Jackson and Timberlake keep a pathetic stunt in the public spotlight.
Jim Castagnera of Havertown is the Associate Provost and Associate Counsel at Rider University and a 2007-08 Fellow of the Foundation for Defense of Democracies.

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