Conservative football fans are up in arms over Janet Jackson’s risqué turn at last night’s Super Bowl: At the end of the halftime show, Jackson’s bodice was ripped by pop star Justin Timberlake, and her right breast was briefly exposed. FCC Chairman Michael Powell is among the outraged, and he’s promised a “thorough and swift” investigation of the incident. Who might get stung if Janet’s bare breast doesn’t pass muster with the FCC, and what sort of punishment can they expect?
Well, Timberlake and Jackson needn’t worry. The FCC’s authority extends only to broadcast licensees, which in this case means the various companies that own local CBS affiliates. In exchange for being granted the right to broadcast over the public airwaves, these licensees agree to abide by the FCC’s decency standards. Viacom, the parent company of CBS, owns 16 of the network’s 200-plus affiliates, so the media conglomerate—whose MTV subsidiary produced the halftime show—is definitely on the hook. Other prominent licensees that could get smacked by the FCC include Clear Channel, Hearst, and Gannett, but it’s possible that the FCC will decide that since this latter group of licensees had no control over the show’s content, they don’t deserve anything stronger than a reminder to be careful.
The FCC’s first investigative step will be to determine whether the moment when Justin Timberlake swiped Jackson’s top was obscene or indecent. Obscenity is the more serious charge and would be much harder to prove. According to the FCC’s guidelines, programming can be judged obscene only if it “appeals to the prurient interest,” depicts sexual activity in “a patently offensive way,” and has zero literary, artistic, political, or scientific value. Given that stringent test, it’s more likely that the FCC will focus on the question of whether the Super Bowl incident was indecent—that is, titillating beyond the bounds of good taste. Unlike obscene material, indecent material isn’t illegal in and of itself, as the courts have ruled that it’s protected by the First Amendment. But the FCC’s rules stipulate that indecent material can’t be aired during hours when children are likely to be in the audience—specifically, between 6 a.m. and 10 p.m. The infamous breast exposure occurred well before the evening deadline.
The apologies already issued by Timberlake, CBS, and MTV suggest that they will defend the quick flash as entirely accidental and unavoidable. The FCC has been receptive to that argument in the past—it recently ruled that Bono’s utterance of an F-word variant during the 2003 Golden Globes was “fleeting and isolated,” and that no action against the broadcast licensees was warranted.
But if the FCC finds that too few precautions were taken to avoid a moment of nudity, however fleeting, penalties may follow. Earlier this month, for example, the FCC fined Young Broadcasting $27,500—the maximum per-incident, per-station fine allowable by law—for a moment of male full-frontal nudity on the Oct. 4, 2002, episode of KRON 4 Morning News in San Francisco. The show’s guests that day were the Australian pair behind Puppetry of the Penis, a hit show in which the male member is contorted into various unnatural shapes. While preparing to demonstrate a bit of “genital origami” to the hosts, one of the performers inadvertently let his package slip into the camera’s view. Though the exposure lasted less than a second, the FCC ruled that KRON-TV “failed to take adequate precautions to ensure no actionably indecent material was broadcast.”