Nipple? We don't see no stinkin' nipple 

The Boobless Tube

It was one of those blink and you'll miss it moments, a drive-by concert controversy designed to elevate a particularly bland performance into something that would have made Madge proud.

But this was no Madonna in virginal white humping the stage at an MTV Awards show. No passing of the torch spit-swapper with an up-and-coming pop tart named Britney. No game of spin the bottle with Black Jesus on the church pews, payouts from Pepsi be damned.

The most shocking thing about the Janet Jackson-Justin Timberlake wardrobe malfunction during the 2004 Super Bowl was its brevity. And yet somehow in that split second, an America that was still reeling from the realization that it was not invincible, that it too could be attacked, found a way to fight back. At what exactly we were never quite sure. But, boy oh boy, did it ever cause a bustle in our collective hedgerow.

And now, well after the Fox News fits of Archie Bunker anger — carefully crafted to win the hypocritical hearts and half-empty minds of the Fundies and the Freepers — has all died down, the matter has finally been laid to rest.

On Monday, the 3rd U.S. Circuit Court of Appeals dismissed the $550,000 fine that the Michael Powell-led Federal Communications Commission used to penalize CBS, the network handling the 2004 Super Bowl broadcast.

According to the court, the FCC "acted arbitrarily and capriciously" when it decided to make an example of the television network. Explaining its position, the court wrote, "Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The court added, "The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy. Its orders constituted the announcement of a policy change — that fleeting images would no longer be excluded from the scope of actionable indecency."

In hindsight, it's hard to imagine that nine-sixteenths of a second could have generated so much controversy. What's even harder to imagine is that for most of us those nine-sixteenths of a second passed unnoticed in the first place. For many, those nine-sixteenths of a second didn't even happen.

Here's the thing: that moment when Justin Timberlake rips the piece of clothing from Janet Jackson's outfit, exposing her right breast, unless you had a TV screen the size of Godzilla's left nostril, you probably didn't see much of anything. Yeah, you saw some flesh. Yeah, you saw Janet cover herself. Yeah, you may have known that something happened, but you weren't exactly sure what. But nipple? That, you probably didn't see.

Truth be told, the first time America truly saw Janet's nipple wasn't until well after the game was over. It happened in the days that followed.

That said, the images that we later saw of Miss Jackson's breast — the ones that were blurred out in magazines, the ones that folks ogled on the web, the ones that got the Focus on the Family crowd all in a froth — chances are, those didn't come from CBS. More likely than not, the photos that we now associate with Nipplegate likely came from a series of photos from the Associated Press and were seemingly picked up by every other news outlet in the world, including the Eye itself.

Now, I'm not saying that relieves CBS of the responsibility. The crime happened on their time and their dime. But if a nipple is exposed at the Super Bowl, and nobody sees it — at that moment, at that time — did it even happen on TV?

Seeing is believing, for sure. Convincing yourself you saw something you didn't, that's something else entirely.


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