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An indecency case resulting from the fleeting exposure of Janet Jackson’s right nipple to 90 million Super Bowl viewers made it to the 3rd US Circuit Court of Appeals in Philadelphia yesterday, three years after the event.
In what many regard as one of the more absurd legal cases in recent US history, the court will decide whether “Nipplegate” was an intentional act of broadcasting indecency or merely, as Jackson contends, an accidental “wardrobe malfunction”.
CBS, the television network that broadcast the show, is challenging the $550,000 (£270,000) fine imposed by the broadcasting watchdog, claiming that “fleeting, isolated or unintended” images should not automatically be considered indecent.
The Federal Communications Commission (FCC) argues that “even relatively fleeting references may be found indecent where other factors contribute”. Eric Miller, the lawyer representing the FCC in court, said: “The idea of an exception for fleeting nudity flies in the face of common sense.”
In its appeal, CBS said that it “did not know about [Nipplegate] in advance; did not sanction it; and took steps to prevent anything at odds with broadcast standards”.
The glimpse of Jackson’s nipple — complete with sun-shaped nipple ring — came during the 2004 half-time Super Bowl show, when another performer, Justin Timberlake, pulled off part of Jackson’s bustier, prompting a reported 540,000 complaints to the FCC. A later Associated Press poll suggested that only 18 per cent of Americans supported the FCC’s subsequent investigation of the network.
Nipplegate has become something of a test of the federal Government’s ability to regulate broadcast indecency, especially after the FCC was found by a court in New York to have acted “arbitrarily and capriciously” by attempting to penalise the Fox Network over strong language used by Cher and Nicole Richie at the 2002 and 2003 Billboard Music Awards respectively. Fox is owned by News Corporation, parent company of The Times.
“The FCC’s new zero-tolerance policy has already had a chilling effect on the broadcast industry, particularly television,” Robert Corn-Revere, a lawyer for CBS, said last night.
Although the case was rejected on technical grounds, the court says it was sceptical that the FCC could overcome free speech arguments to support its policy on “fleeting expletives”. The FCC is considering an appeal to the Supreme Court. A Senate committee is working on legislation to back up the FCC and has approved the Protecting Children from Indecent Programming Act, which would require the FCC “to maintain a policy that a single word or image may be considered indecent”.
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I feel what many people who think it is an absurd/ extreme american point of view to punish CBS in this case should realise is;The Super Bowl is watched by 10s of millions of juveniles and children. It is hard to imagine how the UK can have a 9:00 watershed and at the same time mock the US tough stance on (even brief) nudity on a program that is watched by so many youth. I'm for more nudity on TV, but not in instances where so many children are obviously viewing.
Name Withheld, manchester,
$550000 just for a nipple..that is way too much.
mufti, ankara,
it was a simple wardrobe malfunction. maybe you'll be penalized the next time your zipper is accidently down and you are in public. it is indecent exposure right
tj, wmca, usa/nv
I'm sorry. I fail to understand why this is still news. So, we saw a bit of nipple...Will it endure in peple's minds and create a downfall in society? No, I very much doubt it.
I know that American film and TV are more modest about exposed flesh but we're all the same underneath. You'll find that countries such as Sweden, where nudity isn't taboo are very well-adjusted and non-repressed nations.
Haven't the US courts got anything better to do?
Melanie, Lancaster, UK
Unseemly, unsightly, unwise maybe. Downright tacky and lowbrow, definitely. Indecent? That's not for government to decide.
Wardrobe "malfunction?" Come on, we're smarter than that. Not a chance.
Much a do about nothing? Yep.
Thomas, Atlanta, GA, USA
It's not that it's a nipple that's the problem, it's that it's a plastic-surgically-installed ersatz nipple. The entire Jackson family is fashioned from petroleum products.
Maynard, Oxford, UK
what a waste of time and money! the first glimpse of sun men walk around with no tops in the street with bare tops and janet has to endure this sham of a case. please remind me is this in america or saudi arabia?
trevor, bristol, avon
One would think that Americans had more important things to worry about...
Ronnie, PARIS, FRANCE
So a naked nipple is indecent, and should not be seen. Oh dear me, just how prudish are the Americans? Is this REALLY happening?
Adrian Ryan, Donegal, Ireland
Very much enjoyed the previous comment - its usually hard to be insecure and prurient at the same time. Families need to be protected from nipples as thoroughly shocking - I mean its only, well, all of us, that have them. Fortunately G J Bunton is a thoroughly hetrosexual and no doubt voracrious and skillful in attracting the likes of Janet Jackson and so he doesn't mind. Brilliant.
Olek, London,
What an absolute waste of time and money! For God' sake (and I use the phrase deliberately), how can 21st century society be so obsessed with the fleeting exposure of one nipple? Shades of the Taliban here. Next it will be ankles!
zeno, Glasgow,
What a load of old coblers. The Americans are so up tight about a bit of flesh its laughable. You can even be arrested here for breast feeding a baby in public for Gods sake.
The puritans are certainly still at work here, and this case underlines what a stupid obsession this really is.
This incident should have been totally fogotton 10 seconds after it happened. Talk about milking the moment, oops no pun intended
keith manton, houston, USA
Janet Jackson must be pretty desperate to have to resort to this.
As a red blooded male I don't mind her exposing herself but at the appropriate time. Not when families are grouped around the TV watching a major sporting event.
G J BUNTON, SLOUGH, BERKSHIRE
As I sit here looking at this article, there are no comments up yet. But I know what you're all thinking. And I agree. The United States is a weird, weird country.
Michael G., Fort Worth, Tx. USA