July 22, 2008
 
ANALYSIS: Wardrobe Malfunction Fine Tossed; First Amendment Victory?
 
By Tony Rutherford
Huntingtonnews.net Entertainment Editor
 
Philadelphia, Pa. (HNN) – The Third Circuit Court of Appeals Monday, July 21, overturned the FCC’s $550,000 fine against 20 CBS owned television stations for the 2004 Super Bowl live broadcast of Janet Jackson’s wardrobe malfunction. The court determined that the “fleeting image” of Jackson’s exposed breast deviated from the Federal Communication Commission’s 30 year practice that indecent programming must be “so pervasive as to amount to shock treatment for the audience.”
 
The half second glimpse triggered deeper scrutiny of televised ‘live’ events, such as the Grammy Awards or Golden Globes. Jackson’s exposure facilitated networks to adopt a video time delay for live events. However, the judges remain out on two similar fleeting expletives.
 
While artists have praised the ruling, Congress still may yet define even a fleeting dash of indecency to merit a large fine for networks. Even, the upscale PBS has sent its station’s two versions of an upcoming production --- one with and one without specific references.
 
So with a victory today, does censorship of artistic performances still have a surging vector of conservatives in support?
 
Yes, but the contradictions seep with a flood of hypocrisy.
 
Jackson’s wardrobe malfunction lasted less than a second, but some areas of the world --- including a few U.S. cities --- could not raise a protest: They have made topless choices legal on constitutional grounds for both sexes. Of course, few ladies exercise their ‘right,’ they just wanted equality. Facing similar challenges, other cities have retreated by banning shirtless men from public.
 
ABC-TV’s John Stossell has written and produced a series of report about how sex in America has been facing opposition to mere “private matters” whether in the bedroom, public park, or strip bar. One of the most bizarre examples came from a reader of an article HNN wrote about a nationwide demonstration planned by women in favor of going topfree. According to the website, a group plans a protest at the Democratic convention. (Will it be tape delayed?)
 
Meanwhile, the reader told me of a Columbus, Ohio law. Believe it or not, Columbus allows topless sunbathing in parks by women. However, a woman sunbathing bare breasted asked a man to expose himself in a semi-remote section of the park. Once the man complied, the woman showed her badge and officers with a video camera moved in from an unmarked cruiser. The man faces an indecent exposure charge.
 
Learning of the Ohio city’s law took me by surprise. The liberal baring apparently stems from a long time summer festival known as ComFest, where peace, love and partial nudity survive as well as bringing your best four legged friend along for a stroll. Actually, the family friendly festival according to postings is about having fun, drinking beer, and displaying art & craft, earrings, lawn art and dyed t-shirts.
 
Interestingly, though a few women remove their shirts, most use body paint which add designs to their upper anatomy which could be interpreted as slightly less objectionable due to camouflage. One festival attendee wrote, “you’d be hard pressed to notice a woman without a shirt; those who choose to go topless are almost always painted which causes them to become lost in the sea of people.”
 
And once they exit the festival: “Many women feel more comfortable covering up once they leave the event, even though women are allowed to go topless within the City of Columbus.”
 
Yet, as a self stated constitutional scrutinizer, a discussion today made an intriguing hypothetical First Amendment paradox.
 
Agree or disagree, you can observe at least the proposition that the arty designs on the women are self expression, which would be perhaps protected by the First Amendment. (Or, conservatives would say, they are indecent displays not subject to protection.) Now, let’s suppose that a man walks past one of these strolling works of self expression.
 
Imagine, a dude as an ‘art critic,’ and speaks something unfavorable, even derogatory, about the displayed art. Might the woman yell, “sexual harassment” or a verbal “sexual assault?” Now, assuming that his statements of either criticism or appreciation prompted the lady to complain, would not the male ‘art critic’ have a First Amendment right to make his personal statement about the examples of free expression wandering the confines of the festival?