Tuesday, October 7, 2008 9:48 PM CDT
'Wardrobe malfunction' attorney: Free speech, FCC issues coming to a head
By NATHANIEL WEST, Staff Writer
nwest@jg-tc.com
CHARLESTON — The “wardrobe malfunction” during the 2004 Super Bowl halftime show helped spur what First Amendment expert and attorney Robert Corn-Revere said is a holy war involving television, government regulations and the freedom of speech.
“Over the last four years, we’ve been under something of a jihad against broadcast indecency,” said Corn-Revere, a Mattoon native and Eastern Illinois University graduate who represented CBS following the brief exposure of Janet Jackson’s breast on live television.
During a talk Tuesday at EIU, Corn-Revere looked at the history of interpreting the Constitution in relation to obscenity and indecency laws, and he concluded that pending Supreme Court and other federal cases promise to change the laws regarding what can and cannot be shown on TV.
Corn-Revere declined to predict whether these decisions will go in favor of free speech proponents and television networks or the Federal Communications Commission and advocacy groups such as the Parents Television Council.
A partner in the law firm of Davis Wright Tremaine in Washington, D.C., Corn-Revere successfully defended CBS against the $550,000 indecency fine imposed by the FCC in the aftermath of the Super Bowl incident, in which singer Justin Timberlake ripped off Jackson’s blouse during their halftime show performance.
This caused smoldering indecency and freedom of speech issues to go “nuclear,” and the FCC has been cracking down ever since, Corn-Revere said.
However, for about three decades prior, the FCC approached the enforcement of obscenity and indecency rules with “caution” and “restraint,” said Corn-Revere, who noted that he used to work for the FCC.
The impetus for the relatively relaxed era in regulation was none other than the late George Carlin and his list of what are now called the “Seven Dirty Words” you can’t say on television, according to Corn-Revere. In 1978, the Supreme Court effectively adopted Carlin’s list as the national standard, and for the next quarter-century, the FCC received few complaints regarding indecency and obscenity.
However, in the early part of this decade, advocacy groups like the PTC began using email to send complaints to the FCC by the thousands, and new officials at the FCC ramped up enforcement, handing out millions of dollars in fines, Corn-Revere said.
In addition to the Super Bowl case, other matters brought before federal courts included bared female buttocks on the show “NYPD Blue” and swear words uttered on live awards programs.
Complicating the situation are technologies such as the Internet, which evolved relatively free of regulatory involvement and now has the ability to show the same thing that’s on TV, Corn-Revere said.
“It’s not, ‘What picture is in the box?’ but ‘How did the picture get in the box?’” said Corn-Revere. “You have differing levels on Constitutional protection” involving what is basically the “very same image.”
Contact Nathaniel West at nwest@jg-tc.com or 238-6860.
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boboberg wrote on Oct 8, 2008 2:36 AM: