FCC missed chance to clean up TV, by a nipple

A federal appeals court ruled in favor of a nipple on Monday. Law clerks fresh out of Harvard and Yale probably spent hours pouring over the nipple in question, searching for nipple precedent, debating nipple Constitutionality, and sifting through thousands of pages of nipple briefs to determine whether the nipple had a leg to stand on.

This nipple was arguably the most famous nipple in modern times. It was one of two attached to pop star Janet Jackson. While one nipple remained sequestered, the other made a case for nipple liberty when Justin Timberlake emancipated it for about one second during the Super Bowl XXXVIII halftime show in 2004.

The FCC decided that one second of nipple viewing for an audience of 90 million was one second too many, and it fined CBS Corporation $550,000. But that fine was tossed out Monday by a federal appeals court, which declared that the FCC “acted arbitrarily and capriciously” in assessing the penalty.

This nipple in particular was difficult to get a handle on. For that matter, the nipple in society is an enigma. Men can show theirs, but women have to cover them up. And ladies can exhibit most of their breasts in public using various cloth slings or skimpy brassiere-like contraptions, but the nipple itself must be covered at all times. Mothers can even breastfeed in public, as long as a baby’s mouth remains affixed to protect onlookers from the life-altering trauma of seeing a female nipple al fresco.

The FCC took the Spanish Inquisition approach shortly after Jackson’s nipple became bared, which occurred allegedly because of a now infamous “wardrobe malfunction.” The political climate at the time was such that if an exposed female nipple was within 100 yards of a television camera, or even if it was covered up but looked suspicious, security would wrestle it to the ground.

Monday’s ruling struck a blow for all those Americans who love nipples and felt the initial uproar was preposterously overstuffed. It also shows how it only took four years for sanity to again reign when it comes to enforcing a moral code in the media.

In 2004, the country had tilted toward everything conservative, and that sea change emboldened those who would prefer to see all women on television dressed in polygamist cult ensembles.The stunt — some say it was an accident, most say it was planned — unleashed a tsunami of self-righteousness by the nation’s nipple-adverse.

Slideshow: Celebrity Sightings Crackpots emerged from the far-flung corners of the land. Some so-called pro-family groups — how can you possibly be pro-family and anti-nipple at the same time? — organized campaigns to make sure the FCC punished those responsible for subjecting impressionable children to one second of air time that even a forensic investigator would have had to rewind several times to get the full brunt.

Interestingly, since 2004, there has been yet another cultural shift, and not necessarily for the better. While the television landscape isn’t currently dotted with bare nipples from morning until night, a certain permissiveness does seem to have set in. Commercials are more risqué than ever. Promos for series with sexual content could often pass for pay-per-view selections on the Jenna Channel. A small child could walk into the average American living room and get a birds-and-the-bees lesson from television in less time than it takes to get a pizza from Domino’s.

The federal appeals court ruling on Monday signaled that Nipplegate was a waste of angry breath by those who saw it as a way to gain a political advantage. But it also illustrates that conservatives squandered their moral capital on Jackson’s nipple and now they have none left when they probably could use it.

The critics overreacted, and the court agreed. It said the FCC strayed from its standard policy, which is not to fine any programming for indecency unless it was so “pervasive as to amount to ‘shock treatment’ for the audience.” Basically, the court ruled that such a fleeting image can’t be considered indecent.

It didn’t go the logical step further, though, and declare that the FCC’s behavior constituted indecency in and of itself. The FCC kowtowed to those right-wing fringe elements that were out for blood from an innocent nipple. The agency is an inert and pliable body most of the time anyway, and in most administrations, choosing to act only when one constituency raises such a ruckus that it has no choice.

The $550,000 fine was an example that the FCC had been stormed by Taliban-like elements intent on pouncing at the slightest deviation from a strict code of behavior. The court’s ruling Monday effectively drove those folks back into the hills. Gas bags on Capitol Hill, who at the time used Jackson’s nipple as a jumping-off point to bemoan the decline of our civilization, look a lot dopier today.

The only indecency to be found in this entire episode is that something so tiny that appeared on television for less than a second could ever become such a big deal.