This is the first part of a recurring series on the history of American censorship.
I’ll set the scene for you: three 15-ish-year-old boys in a semi-finished basement, chugging sodas and watching the hometown New England Patriots take on the Carolina Panthers in the 2004 Super Bowl. It’s halftime and the Patriots are up 14-10. Tom Brady and Bill Belichick (and a bunch of others) are looking to take their second title in three years and boy is everything great.
The first half ends and the teams retreat to their locker rooms and we settle in for the halftime show. Janet Jackson and Justin Timberlake. Ugh. Even though we were still of the age that the halftime show was still sort of exciting, we knew this was going to suck. But it is what it is and so begins a performance, and so it comes to an apparent end.
Janet Jackson’s bedazzled nipple was just…hangin’ out there. And then the screen abruptly went black. It’s been 10 years and I’m not sure if Greg Gumbel has recovered yet.
The Pats won the game in fantastic fashion on Adam Vinatieri’s field goal in the closing moments, and that was great for we three Patriots fans. But what that game is more widely known and remembered for is the aforementioned: Justin Timberlake ripping half of a garment off Janet Jackson and exposing the world to what appeared to be some sort of metallic starfish looking nipple pasty.
The equation looked a little something like this:
+ + =
The sum was uproar. Oh, there was uproar, most of which, I’d say, was at least reasonable. The Super Bowl is viewed by millions and millions and millions of people and is the most valuable air-time there is. Lots of people paid ridiculous amounts of money to advertise during the game and they didn’t sign on to be associated with an act so appalling.
Also kids were watching. Kids, dude.
The FCC launched an investigation, while CBS and MTV, which produced the halftime show, stuck their tails deep between their legs and groveled before the American people. Paul Tagliabue, the commissioner of the NFL at the time, was thoroughly pissed off and judging by how inexorably lame the ensuing halftime shows have been, I don’t think the NFL has recovered yet either.
The tagline most closely associated with this episode is, “wardrobe malfunction,” which is how Janet and Co. described the incident. For up to the minute coverage of the scandal, check out this article from 2004.
If you recall our piece on Carlin and the FCC, the main action point for the FCC is that obscene material may not be broadcast at any time, and that they can enforce such a policy by levying a fine, or forfeiture, on the offending broadcaster. However, by 2004, most broadcast companies had begun to consider those fines to be minor costs which they would gladly exchange for the super huge money their “obscenity” was bringing them.
Partly in response to this trend, and massive public outrage, the FCC went big and fined CBS $550,000. This was indeed a hefty fine and helped to put the networks on notice that the FCC was not fucking around. As noted by the First Amendment Center: ”The increases in fines were designed to address the apparently unanimous commission view that broadcasters, instead of being deterred from airing indecency, had absorbed their prior indecency forfeitures merely as minor costs of doing business.”
So, the FCC levies a half million dollar fine on CBS. What does CBS do? Took em right to court is what they did. And in 2008, by the time wardrobe malfunction had become part of the vernacular and Timberlake had started his spree of hosting Saturday Night Live, CBS….won. The fine was tossed out.
Basically, the court said that while the FCC had the right to levy fines and penalties, they couldn’t just start throwing half million dollar fines around just because they wanted to make a point, and that just because it was the Super Bowl, didn’t mean that the material was any more offensive that it would have been if it was shown during, say, an episode of NOVA. The FCC couldn’t simply, without alerting the broadcasters, change their policies and standards regarding what offense would get what level of fine, which is exactly what CBS argued. Subsequent appeals have held in favor of this ruling.
Check out this table created by the Washington Post which shows all of the indecency fines the FCC has levied since 1970, and what the results were. You can see how standards have changed over time, how inflation has impacted the amount per fine, and how many of these fines were bargained to a lower amount.
The FCC chose to show more restraint the next time a Boston-based sporting event fell into its crosshairs, when David Ortiz dropped this F-bomb at the first Red Sox game following the bombing at the Boston Marathon last April and the subsequent manhunt for alleged bomber Dzokhar Tsarnaev — further showing the subjectivity and considerations involved with determining standards of obscenity and decency.
image credit: Mike Licht, Creative Commons/flickr