Janet Jackson’s First Amendment Legacy

I don’t know how Janet Jackson rates musically—Thriller is my only contribution to the Jackson family coffers—but she’s top-of-the-charts when it comes to the First Amendment. Janet’s Super Bowl flash has taken us to new legislation that will boost broadcast fines tenfold for content that the FCC finds sufficiently offensive. Plus Sen. McCain introduced a new bill yesterday that tries to push towards cable ala carte, so consumers could get Disney without having to take MTV.

Under the old law, each station faced a maximum fine of $32,500. The new maximum will be $325,000, plus the FCC has announced that it will count each separate use of unacceptable language as a separate incident. String together all seven of George Carlin’s words-that-you-can’t-say-on-TV and you could be out a quick $2.275 million (and remember this is per station broadcasting the content). I don’t know if the FCC has decided whether a topless woman will count as one incident or two.

The House vote on the fine increase was 379-35, while the Senate approved its version of the bill using its unanimous consent procedure, meaning that no Senator opposed the bill. At a time when we seem to be eager to vote on new constitutional amendments, it would be interesting to see how many votes some of the old ones would get. What do we think the over-under would be on the First Amendment?

Remember how we got to where we are. Janet Jackson and Justin Timberlake performed during the half-time show of the 2004 Super Bowl. A “costume reveal” showed us—we are told—more of Janet than was planned. Of course, Janet wasn’t wholly unadorned—go to image.google.com and search on “janet jackson super bowl” if you have forgotten her sunburst “nipple broach”—so maybe J&J gave us exactly as much of Janet as they had planned. And also note while you are at Google, that while Google has three levels of content filtering that you can apply to search results, Janet and Justin make it through each one of them.

The Super Bowl incident was just the beginning, and in March, 2006, the FCC announced a number of fines. The FCC confirmed its prior $550,000 fine against CBS for the Super Bowl (20 CBS-owned stations x 27,500 (the maximum allowed fine then)), but the real eye-popper was a $3.6 million fine for an orgy scene in an episode of Without a Trace (111 relevant stations at $32,500 a piece). (I haven’t seen the scene and would like to if it is online somewhere.)

We might ask, if everyone is so upset, why is there so much trash on TV? This could be a public/private split: I want to be against porn in public, while consuming it in private. That would account for easy votes against porn on broadcast TV, while not changing real access to porn given that the fines don’t apply to cable TV. (Control over TV spectrum is the hook that gets Congress around the First Amendment, at least partially, but that doesn’t work for cable.) If that is right, the public is getting what it actually wants to consume, rather than what it says it wants.

But the incentives to provide content are more complicated than this, and it really could be the case that families find it hard to find acceptable fare. (We just wrapped up via Netflix five seasons of the original Dick Van Dyke show—Rob and Laura Petrie in separate twin beds, though they do smoke and drink like there’s no tomorrow—so I do get the issue.) To understand that, we have to dip quickly into the relationship between product diversity and ownership structure.

Assume 100 consumers and two TV stations. 80 consumers just want to watch porn, while 20 want family-friendly fare. If two stations are competing against each other, each will put on porn and there will be nothing for families to watch. Just to make sure that you see that: if one station had porn, it would attract 80 viewers, while the family-friendly station would get 20 watchers. The family station could switch to porn, lose all of its families but pick up half of the porn audience, doubling its number of viewers from 20 to 40. In contrast, a monopoly station owner would broadcast one porn station and one family station, getting all 100 viewers. Competition works against product diversity here. Adding more stations would help to solve this. As we go from 2 to 3 to 4 and finally to 5, we should expect competition to do a better job of offering both porn and family content.

We now see a possible regulatory package. We limit station ownership, because we think doing so will increase diversity. By definition, it increases source diversity—the number of owners—and if that is your goal, the sheer numerical limit does the trick, but don’t assume that that has anything to do necessarily with actual content diversity. Once we limit station ownership, we are buying into a relatively high amount of competition. That competition may shrink product diversity—too many porn stations—and we could then address that directly, as we have done, by limiting the kind of content that broadcasters can put on the air. The newly-upped fines are one way of doing that.

But even if you think that this explanation has traction—a regulatory structure that generates too much competition resulting in too much trash and more regulation to deal with that—we are still missing something. If stations are fungible—if porn lovers can find it on a cable station just as easily as they could on a broadcast station—we should expect family-friendly shows to migrate to broadcast TV. After all, given the First Amendment restrictions, cable is harder to regulate than broadcast, and the fine threat applies only to broadcast TV.

Comments

[Law Student]

"the real eye-popper was a $3.6 million fine for an orgy scene in an episode of Without a Trace (111 relevant stations at $32,500 a piece). (I haven’t seen the scene and would like to if it is online somewhere.)"

http://www.parentstv.org/ptc/action/withoutatrace/content.htm

[The Law Fairy]

"I don’t know if the FCC has decided whether a topless woman will count as one incident or two."

Professor Picker, you made me laugh out loud at work.

[Dean C. Rowan]

"Thriller is my only contribution to the Jackson family coffers." What? No Beatles?

[Randy Picker]

Three comments, three replies:

(1) Thanks for the link to the Without a Trace episode. People should go to the link to assess the material.

(2) Content should be substantive, but funny is nice too.

(3) Yes, definitely Beatles, and I had forgotten Michael's interest there (though my Beatles purchases don't seem to have been much help to The Gloved One: I think he has posted his rights as security for a loan from Sony; fodder for Secured Transactions the next time I teach it).

[Kimball Corson]

At the moment of the boob barring, I had mental imagery of millions of mothers nationwide -- you know, those whose cars have the bumper stickers which read, "Caution. Baby on Board" -- diving to cover the eyes of their young children to shield them from this intrusive obscenity. So the price of a peek has gone up – not to the viewer, but to the provider. This is the market mechanism run amuck. If she had bared both boobs, should her fine have been doubled? Surely the aggregate sum raunchy male viewers would have paid for the “treat” would cover Janet’s new fine. Where is her support when she needs it? Don’t we have something better to do?

[Kimball Corson]

Or put another way, you mean to tell me that of the estimated 6,522,673,469 boobs on planet earth (world population = 6,522,673,469 so estimate =(6,522,673,469/2)x 2, we can't see even one on TV without a big fuss?

[Dawo]

you know what,dont talk s... about the jackson family,they was 3-4 years old and prefomt on stage-the whole life-and made history Michael and Janet Jackson,so stop hatin,maybe your life is soso bad bad bad,Ugly, you are the lost souls have much fun in your life,,,Europe Germany

[Louis Kessler]

Well the flag burning amendment has passed Committee. So we are well on our way to rolling back the 1st amendment. Next up: A constitutional amendment that allows for penalties for criticizing the commander in cheif. Unpatriotic!!! Oy vey.

Am I mistaken that the gay marriage amendment and the flag buring amendments are the only instances in the History of the US Congress other than prohibition where it has been formally proposed that our constitutional rights be limited or rolled back?

[Kimball Corson]

But Louis, this is a God-fearing country, although we are scared of terrorists too as well as anyone who is different than us, so why not have the Constitutional amendments to protect us, just like we have our gated communities and homogeneous life styles. It keeps things in an order we understand.