As the 2004 presidential election approached, the Federal Communications Commission decided to levy fines totaling $500,000 on 20 CBS-owned TV stations for having broadcast the exposure of singer Janet Jackson’s near-bare breast during the SuperBowl 2004 halftime show back on February 1. Today, Viacom, Inc., the parent company of CBS, announced that it would fight the levy in court.
"The 'costume reveal' was as much a shock to Viacom as to everybody else," the company said in a 78-page letter of objection to the FCC. "No one at the network knew, or had reason to suspect, that the halftime show would end with a glimpse of nudity."
CBS’s main objection to the charge of indecency which is the basis of the fines is that it had no advance knowledge that the revelation would occur, and that the commission reached the "illogical conclusion" that the halftime show was "designed" by Viacom to pander to, titillate and shock the viewing audience.
Although millions of viewers watched as Justin Timberlake sang "I'm gonna have you naked by the end of this song" as he ripped away a piece of Jackson’s elaborate leather garment to reveal her breast and a medieval-looking pastie, religious pro-censorship groups only managed to garner about a half-million complaints about the occurrence. Of that number, many admitted that they hadn’t even watched the show; others said that they had filed multiple complaints – and not one has yet come forward claiming any actual mental or physical damage from having seen the partial exposure.
Although CBS took the more politically-expedient road by claiming that it was unaware that the partial nudity would take place, and that therefore, the event was out of its control, rather than the more aggressive stance that the exposure harmed no one and should therefore be outside the FCC’s purview, CBS executives and attorneys did seem to understand the broader implications of the FCC fines.
"If it stands,” CBS said in its FCC filing, “the [proposed fine] will lead to the end of live broadcasting as we know it by placing broadcasters on notice that they risk massive liability and perhaps license revocation if they fail to adopt technical measures to avoid the possibility of a spontaneous transgression."
Although the SuperBowl halftime show was carried by over 200 CBS-affiliated stations, the FCC saw fit to fine only the outlets owned by CBS.
First Amendment expert Jonathan Katz told USA Today that he believes that current indecency rules are "entirely unconstitutional" and that CBS has a case. "All we saw is a brief glimpse of a breast. That's not enough to justify these chilling fines," said Katz, an attorney at Marks & Katz in Silver Spring, Md. "We're seeing more nudity ... on TV than ever before. Whether you like it or not, it's First Amendment protected."
Katz in the president of the Free Speech Coalition of Maryland, Virginia and D.C., a branch of the national Free Speech Coalition.
Others found the case to have interesting implications for the future of public sexual (if inadvertent) speech and the FCC’s role in policing it.
“Assuming the FCC stands its ground,” opined Lisa de Moraes of the Washington Post, “CBS can either pay up or not, in which case it's up to the Justice Department to try to collect, which means the whole thing could play out in court. Wouldn't you just love to see FCC Chairman Michael Powell take the stand to explain how the commission determines what is ‘patently offensive as measured by contemporary community standards for the broadcast medium’?”
