Entertainment Law Reporter
June 2006 Volume 28 Number 1

FCC refuses to set aside $550,000 fine penalizing CBS for airing Janet Jackson’s bare breast during 2004 Super Bowl

Janet Jackson’s breast is sure to become the most famous bosom in legal history. Not only did her breast-baring costume “malfunction” during the halftime of the 2004 Super Bowl result in a ten-fold increase in the statutory penalty for indecent broadcasts, it also resulted in a fine whose legality may eventually be reviewed by the United States Supreme Court.

Prompted by complaints by the Parents Television Council and like-minded viewers, the Federal Communications Commissioned fined CBS $550,000 for airing what the FCC determined was an “indecent” broadcast (ELR 26:4:10). CBS petitioned the FCC to “reconsider” the fine in a proceeding that is something like an internal appeal. CBS argued that the breast-baring incident did not make the Super Bowl halftime show “indecent,” as that term has defined by the FCC itself.

The FCC disagreed, however. In a formal, 18-page order that was more sexually explicit than the halftime broadcast, the FCC denied CBS’s petition.

Congress and the FCC do have the constitutional power to penalize “indecent” broadcasts. The Supreme Court decided that more than a quarter century ago in the Pacifica case (remembered by some as the “George Carlin/Seven Dirty Words” case). However, the First Amendment also requires clarity. Laws that penalize “indecency” are not constitutional if they are vague about what they prohibit.

Though the FCC has issued countless “indecency” rulings over the years, those rulings have not produced a rule that is a model of clarity. What’s worse, in order to stay on the safe side of the law, cautious broadcasters – uncertain about what, exactly, they may show – have decided against broadcasting award-winning films like “Saving Private Ryan.” (ELR 26:10:4) CBS could appeal the FCC’s Janet Jackson fine to the Supreme Court – without challenging the government’s authority to ban indecent broadcasts – by focusing instead on the sloppy way in which the FCC has defined “indecency.”

Complaints against Various Television Licensees Concerning their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, Order on Reconsideration, FCC File No. EB-04-IH-0011 (2006), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-68A1.doc