A Legal Minute: From “Nipplegate” to “Nude Awakening”
I’m not sure if you remember February 1, 2004, but I certainly do. I was in Dallas, Texas watching the Super Bowl on TV and looking forward to a great halftime show featuring Justin Timberlake and Janet Jackson. Little did I know that the halftime show would go down in infamy as Ms. Jackson’s wardrobe famously malfunctioned in Justin’s hand to expose part of her breast to the world. At the time I was pretty shocked about “Nipplegate.” After all, MTV, who produced the show did promise “shocking moments,” and boy did they deliver!
What happened after the ”Nipplegate” Moment?
Well, that particular moment that came to be known as “Nipplegate” drew the ire of millions, including my mother, who started an e-mail campaign calling for the Federal Communications Commission (FCC) to fine CBS heavily. She sent in one of the 540,000 complaints the FCC received concerning ”Nipplegate” alone. This was not exactly the first time nudity had appeared on standard television airwaves. Just about a year earlier, NYPD Blue featured actress Charlotte Ross’ backside and side in late prime time, which dismayed many others.
Now, in case you are wondering, the TV and film fan that you no doubt are, the FCC has been granted authority to bring down the hammer on networks who violate its indecency policy. Usually this comes in the way of fines. I mean, can you remember the last time a network was taken off the air for indecency? Neither can I. So, with these magical fines, the FCC caters to the populace that lodges complaints about the indecency of what is transmitted to our TVs.
Latest Supreme Court Decisions
Well, late last week the Supreme Court decided that the FCC is running wild. According to a unanimous opinion by the nine Supreme Court justices, the FCC’s indecency policy is too vague to be enforced as it currently reads. The cases that went to the Supreme Court were actually challenges to FCC fines brought by ABC for showing a nude Ross (back in 2003), and Fox for airing Cher cursing (back in 2003) during an awards acceptance speech (yes, these cases do take for-EVER) to get heard). Incidentally, years ago a court found that the fine levied against CBS for Nipplegate was void, so that case never even made it to the Court. So what does this all mean?
Well, even though incidents like cursing and nudity on television from the last decade garnered an FCC fine, the Court has decided that these fines can no longer be levied unless the FCC gives proper notice of the policy. The problem the FCC has, is they don’t have a well defined indecency policy. And honestly, who can blame them? As of a few days ago, it was estimated the FCC has a backlog of about 1.5 million complaints filed by viewers (you know, the ones like my mom), involving 9,700 broadcasts. And mostly they respond and fine for the incidents that make it big in the headlines.
What is the next step?
So what is the next step? The Court did not go so far as to say the FCC cannot regulate indecency on the airwaves at all, they just need to do a better job of defining it and letting broadcasters know. Of course, my question is, with so much media content out there on TV, the web, mobile, etc., is the FCC just spinning its wheels? My mother probably doesn’t think so, but unfortunately for her, I do.
Roberto “R.C.” Rondero de Mosier is an attorney licensed to practice law in Texas, California, New York and Illinois. He is a partner at Gonzalez & Mosier Law PLLC. His practice specializes in Entertainment Law and Intellectual Property rights. In his spare time he enjoys watching television and films, and writing about it. Follow him on Twitter @showbizattorney, or e-mail him at firstname.lastname@example.org
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