The irony is that Janet Jackson's infamous "wardrobe malfunction" can be viewed on-demand on YouTube. That illustrates the problem the FCC has when trying to turn back the clock on objectionable behavior in the name of public decency.
Still, a federal appeals court in Philadelphia this week made the FCC's job a lot more difficult. The public airwaves still hold a great deal of influence over the nation's cultural climate, even if that influence is shrinking. By overturning the FCC's $550,000 fine against CBS Corp. for Jackson's obviously premeditated indecency during halftime of the Super Bowl in 2004, the court opened the door to a flood of "spontaneous" abuses on live shows.
The three-judge panel said the FCC changed its previous practice of assessing fines only against behavior that was "pervasive" and that amounted to "shock treatment" for the viewing public. Jackson's breast-baring incident lasted only nine-sixteenths of a second, the court said, and it was not part of the script.
Set aside for a moment that the incident happened in front of a television audience of 90 million during a game that has evolved into something akin to an annual national holiday. Jackson and fellow singer Justin Timberlake were performing a song called "Rock Your Body," which included the lyrics "Gonna have you naked by the end of this song." Jackson was set to debut a new album and MTV.com had recently predicted "some shocking moments" during the Super Bowl halftime.
What part of any of that sounds appropriate for the type of family audience that watches a football game?
Meanwhile, another challenge by NBC, this time against a fine levied for an unscripted expletive during the Golden Globes awards show, is making its way through the courts. Another case involving Cher and Nicole Richie on an awards show soon will be heard by the Supreme Court.
Perhaps the FCC wasn't so hard on fleeting expletives in the past because a cultural ethic was in place, keeping most people from doing such things. Today, incivility and irony rule entertainment.
Even if the FCC can control only a smidgen of what passes for broadcast standards these days, we hope the Philadelphia court's view of things will be overturned.