The $550,000 fine that the Federal Communications Commission imposed on CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl was a serious setback to freedom of expression.

That’s the first sentence of the NYT’s editorial today on the Third Circuit Court of Appeal’s overturning of the FCC decision. I’m in the media and like the First Amendment as much as the next guy; but it’s hard to see where “Janet Jackson’s boob” and “freedom of expression” collide, other than in the great Big Lap Dance in the Boardroom of the Newspaper Company That Used to Own a Lot of TV Stations and Can’t Help Seeing Things From That Perspective in an Editorial about FCC Regulation of TV Stations. Jackson can flash her chest anytime she wants, and Justin Timberlake can arrange to flash hers or anyone else’s at will as well. The issue—and it really wasn’t the issue, actually, but more on that in a minute—was whether CBS should be penalized for broadcasting it.

What’s the free speech threat? In the You Tube Era, broadcast TV is the last place you’d want to flash your boobs if you really wanted to get that message out. Sure, it was the Super Bowl, but she only got to “speak” for a split second. As for CBS, it broadcasts over the public airwaves, and knew the rules when it got into the business. If Viacom wants to show flesh, it can do it on Showtime. Hitsville’s oft-stated position:

Presumably we all agree that there is some subject matter on the continuum of cultural products in the world ranging from “Bambi” on one end to actual filmed bestiality on the other beyond which we would not like to see beamed over the air for free viewing by anyone, particularly kids, at any hour of the day. At this point, given the technology we’re using, where that line is drawn on a medium I barely watch any more is, to me, a jejune discussion.

But no—here we have another editorial decrying “censorship.” The test of whether such commentaries are written in good faith is whether they lay out clearly the special status the broadcast media have and put the “speech” in question into context. (Indeed, twenty years ago celebrity boobs weren’t so prevalent and might have deserved some legal protection!) The decision was in some sense based on a technicality; the court didn’t say the commission couldn’t regulate such things, just that the ruling the commission made “failed to provide a reasoned explanation, and appropriate notice, for its change in policy.”

It’s hard to say why this is a issue. The networks can easily indemnify themselves from fines by contracting with celebrity hosts to provide services that don’t get the company or its affiliates fined for indecency. The trouble with allowing “fleeting” obscenity, from the commission’s view, is that it then creates a new celebrity game where any appearance on a broadcast variety show will be a new opportunity for a new “fleeting use,” with a corresponding new round of outrage coming from viewers—and the accompanying media coverage.

That’s what it’s really all about, and that’s the other aspect editorials on this subject should address. My disdain for this subject comes from years as a journalist having to watch coverage of such inanities. The Super Bowl scandal didn’t exactly have the desired effect on Jackson’s career—her CD sales have continued to tank since then—but you couldn’t blame the girl for trying. The poor thing, undeterred, has been gamely trying to play the sex card off and on ever since, notably on Discipline, her latest, which is full of wanly vulgar attempts to generate a little more naughty publicity. Sample lyric: “My swag is heavy / Heavy like a first-day period.” It’s a sad end for a once fairly classy pop artist.

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Previously in Hitsville

The Supreme Court takes on an indecency case