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Trying Cases in the Court of Public Opinion

KRAMER VS. The Boob Tube

By IRWIN KRAMER
The Daily Record
February 9, 2004

Sports Trivia: At halftime during a Superbowl, who decides what your children should watch on television?

A.  The Commissioner of the NFL;
B.  The Commissioner of the FCC;
C.  Janet Jackson;
D.  Justin Timberlake;
E.  None of the above.

If you responded “E”, thinking that the real answer should be “parents,” you’ll need to watch a replay of MTV’s musical halftime show. Perhaps it was an innocent “wardrobe malfunction,” but Justin Timberlake kept his lyrical promise to have Janet Jackson “naked by the end of this song”.

As these multimillionaire recording artists flashed more than their jewelry in an effort to rebel against the establishment, they also fulfilled MTV’s promise to provide “some shocking moments” during the most watched sporting event in the world. They certainly shocked parents who gathered with their children to watch what they thought was just a football game.

The game may be over for the New England Patriots and Carolina Panthers, but it has only just begun at the Federal Communications Commission. Calling the whole performance an “onstage copulation,” FCC Chairman Michael Powell has called for a federal investigation designed to enforce standards of decency on the public airwaves.

While many would question the government’s right to monitor the content of public programming, the U. S. Supreme Court has already addressed this question when reviewing another “shocking broadcast” years ago. When a New York radio station surprised its listeners in an afternoon broadcast of George Carlin’s “Filthy Words” monologue, the Supreme Court rejected the claim that entertainers and broadcasters have a First Amendment right to shock the public with “indecent programming.” Observing that “the broadcast media have established a uniquely pervasive presence in the lives of all Americans,” Justice John Paul Stevens concluded that “[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder."

Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” Since “broadcasting is uniquely accessible to children, even those too young to read,” the Court recognized the government’s need to protect them from prime time displays of indecency.

Jackson, Timberlake and other members of the MTV generation would undoubtedly challenge the establishment’s power to set standards of decency for our nation’s youth. They would prefer to set these standards themselves. While the federal government should not be permitted to censor the content of broadcasts and ban everything that it deems unsuitable for minors, neither MTV nor the FCC should usurp the power of parents to make this determination.

By eliminating shocking surprises during prime time, perhaps the societal values of parents may once again prevail over the shock value of pop stars.

Nothing could be less trivial.