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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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February 03, 2004

Janet, Justin and Michael Powell

Posted by Ernest Miller

The whole brouhaha about the boorish publicity stunt pulled off by Janet Jackson and Justin Timberlake during the Super Bowl Halftime Show is truly pathetic. Janet, Justin, CBS and MTV are getting exactly what they want, oodles of free press coverage that touts them as somewhat daring or something. Even better, as they probably calculated, the FCC is now helping out by launching an expensive taxpayer-funded "investigation" into the stunt that will produce little in the way of information or deterrence, but will provide for even more coverage and give politicians and FCC Commissioners/Politicians an opportunity to prove their cultural conservative bona fides. See, FCC Chairman Michael Powell's statement: FCC Chariman Powell Calls Super Bowl Halftime Show a "Classless, Crass, Deplorable Stunt." Opens Investigation [PDF].

Of course, if the Super Bowl had been broadcast on cable, there most likely would have been some controversy over the baring of a partially concealed breast for a couple of seconds, but there certainly wouldn't have been any call for an investigation into the act by the FCC. Why? A little thing called the First Amendment, that only partially applies to broadcast, apparently. We should abandon this asinine "indeceny" policy that only applies to broadcast and I certainly agree with the following statement on the issue:

I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.

Who made this radical statement? Michael Powell, in 1998. See, Michael K. Powell, Commissioner, Federal Communications Commission, Before the American Bar Association 17th Annual Legal Forum on Communications Law, Las Vegas, Nevada, April 5, 1998.

Comments (8) | Category: Freedom of Expression


1. Cypherpunk on February 3, 2004 07:56 PM writes...

Of course, Powell's comments can be read the other way just as easily: that cable operators should come under the same regulatory regime as over the air broadcasters. If bare breasts are forbidden on CBS, why should they be OK on MTV?

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2. Ernest Miller on February 3, 2004 08:42 PM writes...

No, they can't, because the First Amendment wouldn't allow it. The justifications that the Supreme Court said allow regulation of indecency on broadcast TV do not apply to cable. Powell can hardly have meant that broadcast was "uniquely undeserving of full First Amendment protection" and every other medium should also be "uniquely undeserving."

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3. drb on February 4, 2004 02:35 PM writes...

Of course, MTV would have pre-recorded and pixelized the organ in question -- they do it all the time.

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4. Hunter McDaniel on February 5, 2004 04:55 AM writes...

Let me state up front that I agree with those who say the decency regulations make no sense in this day and age. In public statements we see everyone rushing to take their familiar parts - the brave defenders of sexual liberation on one side, the valiant opponents of smut on the other. Puhleeze.

All of this misses the point of whether the MTV spectacle was APPROPRIATE for the event and network where it was staged. It wasn't. The Super Bowl belongs to all of us, and should be a unifying event. The MTV halftime was a deliberate offense to a huge segment of the audience. This has nothing to do with FCC regs; CBS betrayed their trust to us.

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5. Ron Mwangaguhunga on February 5, 2004 06:48 PM writes...

According to Yahoo News: "A second-grade girl from Pittsburgh was suspended this week from her public elementary school for saying the word 'hell' to a boy in her class.

"But 7-year-old Brandy McKenith says she was only warning the boy about the eternal comeuppance he could face for saying: 'I swear to God.'"

What? Is Michael Powell moonlighting as a school principal now?

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6. vejadu on February 6, 2004 12:58 AM writes...

You're absolutely right that technology has blurred the lines between mediums.

However, I can't really tell if you support standards for broadcast indecency/obscenity or not.

If you are arguing against standards, would hardcore pornography be allowed on broadcast television and/or basic cable?

If you are for some sort of standards, what would they be and who would create them? Let's hope the creation wouldn't involve Falwell...

Personally, I'd like to see more reasonable standards developed. I think that the problem with the Super Bowl stunt was that what many people expected to be a "PG" half-time show became became a "PG-13" or a questionable "R".

Either way, there will always be someone who is displeased with what they see.

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7. A. Father on March 19, 2004 11:49 PM writes...

As a father and husband, I have no problem with my children seeing a bare breast on television, no matter the time of day.
For crying out loud, it's a mammary gland! They are for feeding infants!

My own children have endured hours of torture from bared breasts in my home, as my wife nursed our infant children; and the youngest were never shielded from the simple facts of anotomical function.

Breasts are a simple fact of life, and our elected and appointed officials need to grow out of their eternally sophomoric state.

VIOLENCE on television?

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8. Cypherpunk on March 29, 2004 05:24 PM writes...

The Cato Institute has a new article exploring the idea that the government will in fact try to regulate cable TV on a theory of "censorship parity", . Cato worries that convergence will lead to other government intrusions on private video transmissions, such as the fairness doctrine or educational mandates. Sure, the First Amendment should prevent this, but it's commercial speech and in the end the court will balance the interests involved.

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