Dan's Papers - August 1, 2008

One hundred years ago, the trustees of the Village of Southampton anguished for months about the creation of a law that would keep indecency and improper attire off the fabled streets of that fabled town.

After a while, they did come up with something, which today is summarized in a series of green and white signs that stand on metal poles at the entry roads that lead into town. Everybody's seen them. But what do they mean?

They read, ALL PERSONS ARE REQUIRED TO WEAR PROPER ATTIRE ON PUBLIC STREETS.

Most people want to obey the law. And since finding out what the law is is something of a bother, they simply dress well when they go downtown. Today, Main Street and Jobs Lane are indeed filled with fashionably dressed people, for the most part.

Just in case you are interested, how the law reads is this: "No person shall appear in a public street in said Village clothed or costumed in such a manner that the portion of his or her breast below the top of the areola is not covered with a fully opaque covering" and "his or her buttocks and the private or intimate parts of his or her body" must also be "covered with a fully opaque covering." The law applies to all parts of the Village except at the beach, and "within a distance of 500 feet of a body of water" to allow beachgoers to get to their cars in their bathing suits where, presumably, they cover themselves.

All this came to mind the other day when I read that a court decision has been made, four long years after the alleged violation, in the case of Janet Jackson and Justin Timberlake and the Wardrobe Malfunction.

You may recall that at the 2004 Super Bowl game, at halftime, Janet Jackson's right breast popped out of her costume during her performance on that day. Ten million people around the world saw it. People were shocked! People were enraged!

It happened just at that moment when Janet Jackson and her "guest," Justin Timberlake, were singing a hip-hop duet called "Rock Your Body," and they got to the last line where Timberlake sings, "And I'll get you naked before the end of this song." As he says it, he reaches to rip the bodice over Jackson's left breast to presumably reveal just her bra, but, whoops, instead of just the bodice, the bodice and the bra both get torn off and out pops the breast. Jackson, startled, is quick to cover herself up. And that is that.

It has taken four years to get this matter through the courts.

During the first year, the lawyers argued about the event itself. In the videotape of the Super Bowl, the malfunction was played over and over again to determine whether a boob was actually bared and, if so, how much. It was played in fast motion and in slow motion. The time of the exposure was 0.63 seconds. There was some ambiguity about it. It depended on where you were sitting, or whether you were watching closely. The real issue, however, was not whether the boob was exposed, but whether the nipple was.

It was conceded by the prosecution that an exposure of the boob, above the nipple, happens in everyday life and all the time on TV, what with low-cut dresses and so forth and so on. Also, there are sometimes dresses that show, to a point, the underside of the boob. Bared are both the stomach and bellybutton, and above that the underside and bottom half of the boob right up to, but not including, the beginning of the bottom of the nipple.

There was no doubt that during those 0.63 seconds SOMETHING resembling a nipple was revealed. Had there been a pastie over it? There was some sort of glittery thing.

After much investigation, it was ruled that the glitter was, in fact, exactly that - glitter. It was not a pastie. Chalk one up for the prosecution.

During this time, I went to see a friend who had TiVoed and then kept the offending revelation for, at that point, two years. We cranked up the TV and we both looked, over and over again, at it in his living room. Personally, I thought it was a pastie. Why hadn't somebody asked Janet Jackson? Indeed, it turned out, somebody had, but she refused to say, hiding behind the Fifth Amendment. Apparently, it was her nipple.

During the second year, the subterfuge was discussed. At the time, Janet Jackson announced that this had been an accident - a "wardrobe malfunction," as she put it. The prosecution argued vehemently that this was an actionable statement on her part, that indeed, particularly considering the lyric, "And I will get you naked before the end of this song," it was a matter, on her part, of making fun of the American justice system. "What did she know and when did she know it?" one lawyer asked.

During the third year, there was discussion about whether CBS should have paid the $550,000 fine that the FCC had demanded. The defense lawyers argued that paying this fine, which they did, amounted to a violation of the innocent-until-proven-guilty law. CBS was claiming they were innocent of any crime. Yet they paid it anyway. And why $550,000 rather than, say, $600,000 or $500,000? What was that all about? Sounded arbitrary to them.

The discussion of CBS's culpability spilled over into the fourth year of the case. The defense argued that although CBS had a five-second delay on the audio so they could bleep bad words when and if they occurred, they had not set up anything to smudge out the video. CBS argued that no "wardrobe malfunction" had ever occurred in prior performances of "Rock Your Body" by Jackson and Timberlake. So they had not made any preparations for it. And this was a live performance.

They appealed to the judge to consider the "surprise" factor. They presented many instances when the FCC censors looked the other way because the offense came as a "surprise." Football players using the word "f-k" after a bad loss was one example. The FCC let that through. Another surprise came at a Hollywood awards ceremony where, quite by surprise, hosts Paris Hilton and Nicole Richie bantered a considerable surprise of forbidden words, quite unexpectedly. These words became known as "fleeting expletives" in that case, and the judge overturned the FCC fine.

They also argued that there was no collusion here, which the prosecution had suggested. This was a slur. There was no proof CBS knew anything about this ahead of time. The judge said he would take all of this into consideration.

In last week's decision, the judge ruled that the fine had been levied inappropriately. He declared that the prosecution had failed to show that CBS knew anything about this before it actually happened. In addition, he ruled that since Justin Timberlake and Janet Jackson were not in the direct employment of CBS, they were, in fact "independent contractors," and it was they and they alone who were responsible for the peek-a-boo boob. But then the judge also argued that 0.63 seconds was just a blink of an eye in the scheme of things, and the FCC, in his opinion, had overreacted in the size and scope of the fine considering other fines for similar matters elsewhere. He also pointed out that many of the 140,000 letters of outrage that were received by both the FCC and CBS were duplications, obviously written as part of some organized campaign to make it appear that more people were outraged than there actually were. And with that, he dismissed the case, and ordered that the $550,000 fine collected by the FCC be returned to CBS and its affiliates, with interest.

Experts in analyzing this boob decision said they were not surprised by it, but they cautioned that this does not mean that the pendulum of popular opinion about carnal display would return to the heady days of the 1960s and the 1970s when, for example, Charlotte Moorman, the famous cellist, had performed an entire Beethoven concerto in the nude before audiences of thousands who successfully argued all the way to the Supreme Court that this was "art." Those heady days are gone forever.

"This is just one drop in the bucket," one expert said. "It will move things a little bit. But we really won't know how far until one of these cases goes all the way to the Supreme Court, as the Moorman case did all those years ago."

What that could be is FCC vs. CBS. In other words, stay tuned. There's more to follow in, as Sherlock Holmes might have said, "The Case of the Errant Breast."

Thus does American justice interpret the right to one and all, dressed or nude, male or female, to a speedy trial.