by TChris

CBS, guardian of the nation’s moral fabric, has reportedly pressured producers of the Grammy awards to rescind Janet Jackson’s invitation to appear at Sunday night’s award presentation in light of her decision to expose some or all of her right breast to Superbowl viewers. Jackson had been scheduled to introduce a tribute to Luther Vandross. Oddly, CBS will apparently allow Justin Timberlake to sing the Grammy-nominated “Where Is the Love?” with Black Eyed Peas during the broadcast. Timberlake, who removed a portion of Jackson’s costume at the end of their Superbowl performance, has been aptly labeled as Jackson’s co-conspirator.

While this is not a criminal conspiracy (and certainly not worthy of all the hand-wringing, including an ill-conceived FCC investigation), it would be interesting to ask CBS why it decided to ban Jackson but not Timberlake. The criminal law generally decrees that individuals who join together to commit a crime are equally guilty of the crime. Does CBS view Timberlake, who took an affirmative step to expose the breast, as having less responsibility than Jackson, who passively allowed the exposure? Was not this act that CBS regards as an affront to decency jointly planned and executed?

Of course, the criminal law recognizes that shared responsibility is not the same as shared culpability, and some offenders therefore deserve lighter sentences than others. But why is Timberlake (whose actions are described by some, perhaps unfairly, as "a pantomime of sexual assault") less blameworthy than Jackson? Is it her fault that she’s the one who happened to have the breast?

Criminal law doesn’t apply here, but civil law might. Should CBS and/or the Grammy producers be worried that treating the white male more favorably than the black female runs afoul of civil rights laws? Perhaps CBS views presenters differently than it views performers, although it is difficult to draw a principled distinction that justifies the disparate treatment of Jackson and Timberlake. At the very least, the decision betrays an alarming insensitivity that is more offensive than the Superbowl mishap.

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For those who were emotionally scarred or traumatized by catching a fleeting glimpse of a woman's breast, help is on the way. A Tennessee woman has started a class action lawsuit "for exposure to lewd conduct" on behalf of the millions of people who saw Jackson's performance. While complaints of frivolous litigation are largely overblown, this may be the silliest lawsuit in recent memory.