It hardly seems possible that, more than five years after Janet Jackson and Justin Timberlake’s "wardrobe malfunction" at the Super Bowl, the highest court in the land is still deliberating the question of how outraged we as a nation should be by that long-ago glimpse of pop-singer flesh. Today, the Supreme Court ordered a federal appeals court to consider reinstating the $550,000 FCC fine on CBS, which was thrown out last year on the grounds that the boob flash (which lasted nine-sixteenths of a second) was protected by CBS’ rule allowing for "fleeting" instances of obscenity.
To the extent that I ever had an opinion on this by now absurdly musty controversy, I would have been on CBS’s side. It’s the nature of live television coverage that things (Bono's F-bombs, Janet's nips) slip out, and the constant threat of fines could have a dampening effect on networks' freedom to broadcast live, amounting to a kind of pre-emptive censorship. But given the drop in the bucket that a half-million dollar represents in the context of the bank bailout, what if we as a nation just pick up the tab for CBS’s fine so we never have to talk about this again? Here’s a litmus-test tip for President Obama as he begins his SCOTUS deliberations: Man or woman, "contructionist" or "activist," just please, in the name of God, appoint a Supreme Court justice who does not give a prawn about Janet Jackson’s right nipple.