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Will Fonda's On-Air Blooper Help CBS in the Janet Jackson Case?
The Legal Intelligencer
February 19, 2008
If judges can be affected by real world events that mirror the cases before them, Jane Fonda's unbleeped blooper on NBC's "Today" show this week just might have an immediate impact in an ongoing court battle between CBS and the FCC.
CBS last year appealed the Federal Communications Commission's $550,000 fine on the network for Janet Jackson's breast-flashing incident in the 2004 Super Bowl halftime show. The appeal was argued last year in the 3rd U.S. Circuit Court of Appeals before Chief Judge Anthony J. Scirica and Judges Marjorie O. Rendell and Julio M. Fuentes.
On the Feb. 14 "Today" show, for those who missed it, Fonda uttered the "C word" when she was interviewed by Meredith Vieira about her role in the play "The Vagina Monologues."
The three judges who heard the Janet Jackson case may already be finishing up their work, but if any or all of them saw the Fonda incident, it just might have changed their opinion on whether networks should be held responsible for such an unbleeped blooper.
That's because the two indecent incidents are strikingly similar -- at least from a legal standpoint.
Both occurred outside the less restrictive evening hours when coarser language and even brief nudity seem to be tolerated by the FCC.
Both also occurred in live broadcasts.
And both involved major celebrities who are not on the networks' payroll and could be seen as acting independently.
Of course, one was an allegedly indecent image, while the other was merely a single word.
But Vieira's on-air apology in the "Today" show's next half-hour segment shows the network knew that many viewers considered such language -- and especially that one word -- highly offensive.
In the broadcast, Fonda appeared with playwright Eve Ensler to celebrate the 10th anniversary of Ensler's award-winning play, "The Vagina Monologues," a collection of snippets from Ensler's interviews with women from all walks of life about their sexuality.
The play, which is often performed by a trio of celebrities, has sparked a movement called V-Day that works to end violence against women.
Fonda was asked how she first heard of the play and replied: "I was asked to do a monologue called 'C--,' and I said, 'I don't think so. I've got enough problems,'" Fonda said. "Then I came to New York to see Eve and it changed my life."
The "Today" show airs live on the East Coast, and the word was not muted or bleeped.
Vieira, in her apology, said: "Jane Fonda inadvertently said a word from the play that you don't say on television. It was a slip and obviously she apologizes and so do we. We would do nothing to offend the audience, so please accept that apology."
The FCC usually acts only when it receives complaints and so far has appeared to be much more tolerant of accidental indecency in the spoken form than it is for nudity, however brief.
But the Fonda incident could nonetheless add oomph to the argument CBS is making in the Janet Jackson case -- that the networks should get a pass in cases of "fleeting" indecency in a live broadcast.
"CBS neither planned nor approved this split-second incident," attorney Robert Corn-Revere of Davis Wright Tremaine in Washington, D.C., argued.
For the judges, the ultimate question is whether an apology from the network is enough when a live television broadcast includes an indecent blooper that isn't bleeped or blotted out in time.
