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Commentary

What is the Fuss About Janet Jackson's Breast?

By Marjorie Heins

The barrage of complaints about CBS-TV's broadcast of the Super Bowl on February 1 was, of course, about much more than the baring of Janet Jackson's right breast during the half-time concert. It was - at least so the pundits reported - about the "coarsening" of American popular culture: MTV suggestiveness, crotch-grabbing gestures by rock musicians, uninhibited use of Anglo-Saxon words on the formerly "family-friendly" television airwaves. The fact that this coarsening was manifested during a sports event watched by hundreds of millions of Americans, adults and minors alike, probably accounts for much of the public outrage.

But attacks on the Federal Communications Commission's ostensibly lax enforcement of its rule against "indecency" on the airwaves were much in the news for weeks before the Super Bowl flare-up. In January, Represenative John Dingell, among others, pointedly asked NBC why it did not bleep the rock star Bono's repeated use of the word "fuck" to express his exuberance during the live broadcast of the 2003 Golden Globes Awards (as in: "this is really, really fucking brilliant"). Representative Doug Ose introduced legislation to ban the "seven dirty words" from the airwaves no matter what the context. Senator John McCain has scheduled hearings for February 11 on "Protecting Children From Violent and Indecent Programming."

It is curious, though, how mini-culture wars like this get started, particularly at a time when there are so many more pressing issues on the public-policy agenda (the quagmire in Iraq, the Bush Administration's dissembling over weapons of mass destruction, the economy, even the question whether Howard Dean's primal scream was nonpresidential enough to sink his primary hopes). Indeed, one can't help wondering whether, confronted by all these serious issues, the brouhaha over Ms. Jackson's breast was simply a welcome bit of comic relief. Of course, ironically, the mass media stokes and reinforces the attacks against it by publicizing the cries of outrage.

As we have noted in previous commentaries, the FCC's power to censor indecency on broadcast television and radio (that is, whatever it considers "patently offensive" as measured by "contemporary community standards") is a First Amendment anomaly. Speech that the agency considers indecent or patently offensive at any particular time is fully protected by the First Amendment, and may have serious political, artistic, or educational value. Yet the federal government claims power to suppress it, and the Supreme Court has so far agreed.1

The agency's record of enforcement has been as variable as the political winds. Until 1987, enforcement was lax, as long as broadcasters avoided the notorious "seven dirty words" that had been condemned back in 1978 in the Supreme Court case of FCC v. Pacifica. Pressures from the religious right in 1987 triggered a change: now, the FCC announced a "generic" test for patent offensiveness that would embrace sexual innuendo and double entendre along with taboo words. Of the three broadcasts the commission cited in this 1987 decision, two came from noncommercial radio: a KPFK-Pacifica reading from a play about homosexuality and AIDS, and a punk rock song played on a student radio station. (The third was a Howard Stern show.)2

Given the massive dominance of commercial over noncommercial broadcasting, the FCC's history of condemning nonprofit, alternative radio suggests that political appointees to a federal agency are the last ones who should be deciding what speech Americans will be allowed to hear. In recent years, the FCC has continued to apply its subjective "patent offensiveness" standard to suppress non-mainstream, countercultural expression such as the song "Your Revolution," by feminist rap artist Sarah Jones.3

If federal officials aren't the best choice for deciding what Americans can see or hear, then how do we address widespread objections to breast-baring, crotch-grabbing, and other "Animal House" behavior on television? The first response is that punishments by the FCC are not exactly going to put all of the vulgar words and lusty thoughts that cram our culture back into Pandora's Box. Sexual explicitness in today's culture is a fact of life. Often, one can avoid it if one doesn't enjoy that sort of thing (though perhaps not on Super Bowl Sunday).

Parents cannot always block their children's eyes and ears, however; the best approach here has to be good media literacy education, sexuality education, and lots of independent alternatives to mass-market, lowest-common-denominator culture.4

On top of this, strengthening media ownership limits - rather than weakening them, as the FCC and Congress have been doing for the past two decades - could go far toward reducing the power of giant corporations like CBS/Viacom to decide what millions of Americans will get to hear, read, or watch (in this case, lots of raunchy entertainment and commercials, but not a political ad that criticized the Bush Administration, which CBS refused to air during the Super Bowl). While the government should not be in the business of censoring media content, it does have an important role to play in structural regulation of the media industry. Breaking up the oligopolies can expand the diversity of ideas, viewpoints, and cultural styles that are available in the mass media.5

But the connection between media conglomeration and low-grade entertainment like the Super Bowl half-time event is not one that mainstream journalism is generally willing to make. When I suggested it to one reporter recently, he replied that since he worked for a media conglomerate himself, that part of the interview was unlikely to make it into his story.

February 3, 2004

"If the flap over Jackson's stray breast serves to point up America's ridiculous censorship rules, this tempest in a B-Cup may turn out to be worth all the uproar." - Peter Howell, Toronto Star, Feb. 6, 2004

Update, June 24, 2008: In 2006, broadcast companies filed a court challenge to a new FCC rule that, in most circumstances, banned even one "fleeting expletive" from the airwaves. In 2007, the U.S. Court of Appeals for the Second Circuit struck down the "fleeting expletives" rule as "arbitrary and capricious," but the Supreme Court reversed, and sent the case back to the Second Circuit to decide whether the rule violated the First Amendment (FCC v. Fox). In 2010, the Second Circuit struck down the FCC's entire indecency policy as unconstitutionally vague.

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

For the friend-of-the-court brief submitted by FEPP on behalf of 20 arts, film, TV, and free expression groups in the Second Circuit, see www.fepproject.org/courtbriefs/FoxvFCC.pdf.

NOTES

1. See More Than Seven Dirty Words and The Strange Case of Sarah Jones. The Supreme Court case upholding the FCC's power to censor "indecency" is FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

2. Public Notice, New Indecency Enforcement Standards To Be Applied to All Broadcast and Amateur Radio Licensees, 2 FCC Rcd 2726 (1987); Pacifica Foundation, 2 FCC Rcd 2698 (1987); Regents of the University of California, 2 FCC Rcd 2703 (1987); Infinity Broadcasting, 2 FCC Rcd 2705 (1987); see Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (2001), pp. 109-13.

3. See The Strange Case of Sarah Jones; "Your Revolution" is Not Indecent After All.

4. See Media Literacy: An Alternative to Censorship; White Paper to the National Research Council: Identifying What is Harmful or Inappropriate for Minors.

5. See Media Democracy and the First Amendment.


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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