Pop stars Justin Timberlake and Janet Jackson made headlines after a highly provocative dance at the Superbowl halftime show, culminating in the exposure of Jacksons bare breast in front of tens of millions of surprised football spectators.
In response to the event, the Federal Communications Commission plans to launch an investigation. FCC Chairman Michael Powell called it a classless, crass and deplorable stunt and asserted that Americas children, parents and citizens deserve better. CBS could face fines of more than $5.5 million ($27,500 for each of its more than 200 affiliates) and the networks producers might personally incur penalties as well.
Many millions of viewers probably consider the incident trivial or even amusing, and benign. Others prefer the FCC skip the investigation and revoke CBSs licenses.
A one-size-fits-all policy on obscenity can never satisfy everyoneor even most peoplenor will it work. The FCC guidelines in place did not stop the incident. Tightening of FCC rules wont stop future incidents, and neither will a costly and meaningless FCC investigation. CBS maintains that the incident was unexpected and in violation of network standards, and Jackson has confirmed this, taking responsibility for it. An FCC investigation has very little chance of uncovering anything the public is not already privy to.
Aside from enforcing so-called decency standards for the public interest, the FCC has adopted all sorts of other functions since its inception during the New Dealdesignating television and radio stations; assigning frequencies to networks; granting and revoking licenses; and regulating telegraphs, cellular phones, satellites and cable television.
Some of the most significant accomplishments of the FCC include protecting AT&T from competition for decades by granting the company monopoly privileges, similarly protecting television broadcasters for years by restraining cable television, and delaying the entrance of cellular phones into the marketplace for more than a decade. Such bureaucratically inflicted stagnation on the communications industry has cost the economy tens if not hundreds of billions of dollars.
Bringing the cumbersome FCC into the mix is unnecessary in the Timberlake-Jackson controversy. If the pop stars defied a contract with CBS in their salaciousness, the market will handle it in the best possible way and CBS can always seek legal damages. It is not in the networks interest to offend viewers or to pull so much attention away from the game itself, which happened to be quite exciting this year.
Contractual promises and fear of losing work will have more influence on celebrities than will government harassment of the networks on which they appear. CBS has heard the outcry of those insulted by the Timberlake-Jackson incident and now plans to add a five minute delay to its broadcast of the Grammys, and Jackson is no longer planned to appear on that awards show. The industry will adjust with or without threats from the FCC.
Competitor ABC might even put a seven-second delay into the Oscars this year, partly in response to rock band U2s singer Bono using obscenity at the Golden Globe Awards. Even as the FCC stumbles over whether the F-word in this context warranted a finewhich apparently depends on whether the word is used as a verb, explicative, or in political speechthe market pursues more meaningful remedies.
In order to place full responsibility where it belongs, the airwaves should be privatized, a system of full property rights over electro-magnetic spectrum should be established, and the FCC should stop policing content and let network owners decide what to air. They will respond to the broad spectrum of diverse demands that Americas tens of millions of viewers and hundreds of advertisers convey through the market. If some people find naked breastsor violence, or profane language, or anything elseoffensive, they wont watch the offending channels or advertise their products on them.
Mistakes will likely still occur, as they do now and probably always will. Some viewers will always be offended by certain images. But we should at least eliminate the additional offensiveness of the unnecessary, wasteful and clumsy intervention of the FCC.
|Anthony Gregory is a Research Fellow at the Independent Institute and the author of American Surveillance: Intelligence, Privacy, and the Fourth Amendment (University of Wisconsin Press for the Independent Institute). His previous book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror, won the 2013 PROSE Award for Best Book in Law and Legal Studies.|
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