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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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September 23, 2004

FCC's Janet Jackson Ruling Wildly Inconsistent

Posted by Ernest Miller

Yesterday, the FCC finally decided to fine CBS for the inadvertant baring of Janet Jackson's breast during the Super Bowl XXXVIII. Read the press release: FCC Proposes Statutory Maximum Fine of $550,000 Against Viacom-Owned CBS Affiliates for Apparent Violation of Indecency Rules During Broadcast of Super Bowl Halftime Show [PDF]. This ruling has been expected for some time, so you would think that the FCC would have put a little more effort into the Notice of Apparently Liability.

Read the NAL: Complaints Against Various Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show [PDF]. It's a total of 33-pages, but about half of it is more-or-less useless appendices.

I'm too tired to fisk the whole darn thing, so I'm simply going to make a few points. Read on...

Profane Language Doctrine Entirely Absent From Ruling

With great fanfare last March, the FCC revived the moribund doctrine that profane language could be regulated (FCC Revives Notion of the Profane). Since then, the ill-defined and questionably constitutional doctrine has been mysteriously absent from most FCC rulings regarding issues it would seem to apply to (Where's the Profanity?). Although many of the complaints about the Super Bowl halftime show concerned questionable lyrics, there is not a mention of the standards of the profane language doctrine or how they would apply to these "'crude,' 'inappropriate,' 'lewd' and 'sexually explicit' ... song lyrics."

Why do I keep harping on the profane language doctrine? Not only because it is of questionable constitutionality, especially as promulgated and enforced by the FCC, but because such mysterious doctrines are one of the key tools in the censor's kit. Censors frequently rely on and promulgate vague laws and regulations that they enforce sporadically against politically unpopular targets. If the doctrines were enforced consistently, their oppressive nature would be even more clear and they would lose their political support as the politically popular would be targeted.

Which brings me to:

The Ruling is Wildly Internally Inconsistent

Baring a female breast for a second or two (at the most) is indecent, but nothing else about the broadcast was. Indeed, every other element of the broadcast was so not indecent that any allegations that they were can be dismissed without analysis in a footnote:

Similarly, we have reviewed all of the commercials aired during the broadcast and find that, although we understand that several may be offensive to some viewers, none fits within the Commission’s definition of indecent material so as to be actionable.
Ok, yeah, sure. The FCC doesn't go after the broadcast of commercials because they would have their heads handed to them on pikes by Congress. Now, maybe, the commercials aren't indecent, but isn't it even a close call?

horsefart.jpgLet's consider one infamous commercial in accordance with the FCC's ostensible indecency analysis. TV Barn has a description of the offensive ad (Super Bowl ads: Biting doggie, farting horse):

Breaking new ground, not to mention wind, was this ad featuring a sleigh horse with gas. After his owner lights a candle and the horse -- to quote the closed captioning -- "[farts]," the ensuing fireball makes the owner's date's hair go poof.
There are two main elements to the indecency analysis, according to the FCC:
Indecency findings involve at least two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition—that is, the material must describe or depict sexual or excretory organs or activities. . . . Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium. [italics in original]
Hmmm ... a fart. Could it possibly be a depiction of an "excretory activity"? Survey says: yes!

This brings us to the second part of the analysis. Well, unless you are the FCC. If you bare a female breast, that is a sexual organ and so you have to consider whether baring it is patently offensive:

Because the broadcast material contained, inter alia, a performance by Ms. Jackson and Mr. Timberlake that culminated in on-camera partial nudity, Ms. Jackson’s exposed breast, the material warrants further scrutiny to determine whether or not it was patently offensive as measured by contemporary community standards for the broadcast medium.
Apparently, excretory activities such as a horse farting into a woman's face doesn't warrant further scrutiny. Don't ask me to explain why, because I have no friggin' idea what bizarro line-drawing happens in the convulted minds of the FCC's Enforcement Bureau.

But let's pretend that the FCC did analyze the commercial. Determining whether something is patently offensive is a three-part test:

Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or shock.
Graphic? Well not only does the horse fart, but it farts in a woman's face, the fart is ignited and torches the poor victim. I would personally consider that pretty graphic.

Does the material dwell on excretory activity? It is the whole point of the commercial.

Does the material appears to pander or is used to titillate or shock. Gee, is that a tough call?

I'm not pointing this out because I think Bud Light should be prevented from associating their brand with excretory activities, that's their call. But this is simply one example of where there is quite a plausible argument that, by the FCC's own standards, a commercial was indecent. Yet the FCC simply dismisses the complaint without explanation.

This is the hallmark of the censor.

Ruling Punishes Producers Not Broadcasters

I've addressed this before with what I consider a humorous list (FCC to Fine Only Viacom for Broadcasting Indecency - Why?):

  • People are less offended when indecency is broadcast by community smut peddler, instead of national smut peddler.
  • Statement by Commission that, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area," just a lie to trick unwary media conglomerates into slipping up.
  • FCC Chairman Michael Powell has changed his mind, there is not one First Amendment, but two. One for media conglomerates, another for local affiliates.
  • Local affiliates aren't responsible for what they broadcast. They're just there to collect the checks.
  • FCC clumsily making up for increased media concentration by fining only concentrated media.
  • "They can't fine us all." Local affiliates were right, FCC administratively unable to fine all 180 local affiliates, too much paperwork.
  • Ooops. FCC thought they had already allowed all media to concentrate in single company. Didn't realize there were still local affiliates.
  • It's arbitrary. "We're the FCC. ALL our indecency rulings are arbitrary. What are you going to do about it, huh?"
  • Permitting local affiliates to broadcast indecency without fines will make them more competitive. Supports FCC policy goal of increasing local media diversity.
  • No one was actually watching SuperBowl on the 180 local affiliates that broadcast it.
  • FCC upset that Viacom subsidiary Paramount Pictures has ruined Star Trek franchise.
The thing is, the regulations are supposed to be for punishing those who "broadcast" indecent material. Not the people who did the indecent act, not the people who produced the show, but the people who broadcast it. Congress is considering laws that will make the people who do the indecent things or produce the indecent shows liable in addition to the broadcasters, but currently the law only regulates those who "broadcast" indecent material. If Congress is considering the change, why does the FCC think it can do so unilaterally?

Before all the recent brouhaha, the FCC would only punish stations where there had been complaints. Even though if something is indecent in one place it is indecent everywhere according to the FCC.

Here is the relevant regulation:
47 C.F.R. § 73.3999:
(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.

Now, it seems to me that joe local affiliate is as guilty of broadcasting indecent material as joe Viacom-owned affiliate. Is there any standard that an affiliate can hold to in order to figure out when it will and won't be liable for something it broadcasts from the network feed? Nope. However, the FCC has determined that, because Viacom knew the show would be sexual in nature, they were responsible when it crossed the line. Presumably, the local affiliates have been living under a rock on Mars and had no idea that a show featuring Janet Jackson singing and dancing would be sexual in nature.

Speaking of prior knowledge of the people involved...

Ruling Sets Bizarre Standard for Prior Knowledge Culpability

You see, CBS should have known that Justin Timberlake might do something naughty because he once grabbed someone's ass in England!

Here, the prior conduct of Ms. Jackson and Mr. Timberlake in their performances and efforts to promote their recordings should have given CBS cause for caution regarding their joint appearance on the live, nationally televised Super Bowl broadcast. Mr. Timberlake earned considerable notoriety with his duet with Kylie Minogue on the Brit Awards program, which was nationally televised in England on February 19, 2003, conduct quite similar to that at issue here. According to a news account that ran shortly thereafter, while he performed a song with Ms. Minogue, he “grabbed Minogue’s famous bottom.” The article goes on to relate, “Justin later told a reporter: ‘I’ve heard people in Britain are obsessed with Kylie’s bottom and I can totally see why. I’m pretty obsessed with it, too. I didn’t just touch Kylie’s bum. I copped a feel. On a scale of one to 10, it was like a 58.’”
Man, who knows where this prior knowledge stuff will go? For example, it is well-known that Vice-President Dick Cheney has used profane and/or indecent language in public (Irked Cheney Gives Leahy An 'F'):
In the encounter Tuesday, Leahy responded by criticizing the White House for standing by allies who had accused Democrats of being anti-Catholic last year in opposing one of President Bush's judicial nominees, said one Senate aide, speaking on condition of anonymity.

Cheney then responded, "F--- off" or "F--- you," the aide said.

Presumably, all broadcasters are now on notice that if they broadcast a speech by Vice-President Cheney they may be liable for any profane and/or indecent outbursts he may make. Better get those tape delays ready.


Once again, the FCC betrays its censorious mindset with a ruling that basically boils down to "lots of people didn't like it and we are under pressure to do something, but we can't be consistent without pissing off a lots of other people, so we will put together this ad hoc ruling and pretend like it makes sense."

I'll take a look at the statements of the various commissioners later, if I feel like wading through them.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression


1. akmdave on September 24, 2004 03:09 AM writes...

As the parent of small children I would like to add something: A lot of families watch the superbowl. Most small children are exposed to toilet talk, and toilet humor. In fact, I talk to my almost 3-year-old a lot about such matters, given that toilet use and training is constantly in mind. I also have no problem with her running around the back yard naked. I wouldn't bring her to a nudist camp, since that's not my thing, but I also don't think she would be harmed seeing innocent nudity even of strangers of various ages. However, I would not want her to see a sexualized disrobing ritual such as the JJ Superbowl show. Is that so crazy?


P.S., not that she watches football -- a 5-year-old or more boy would be a more likely demographic -- but I also would be more comfortable seeing fart jokes used to sell things to him, rather than a sexualized disrobing ritual used for the same purpose. All this said, I did not like the ad and would to some extent choose not to buy a product using such (if I could remember the product, I only saw the ad once).

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2. AKMDave on September 24, 2004 03:11 AM writes...

I suspect that many people would agree with me; hence the "community standard" seen by the FCC is a reasonable choice. (Of course, another Administration might choose differently.)

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3. akmdave on September 24, 2004 03:18 AM writes...

That there is no fine for the horse fart seems like a reasonable choice as well. Naturally, excretory function could be seen as patently offensive if it amounted to a "toilet cam" or some such view of an anus disgorging a turd. In fact, in this extreme case I'm sure it would. Most likely, if the horse had had a visible wet fart we would also see Mr. Powell objecting to that. Ditto if the add featured a person's nude backside, rather than a horse's. This is also pretty reasonable, given that horses are generally expected to be naked.

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4. PrivacyHound on September 24, 2004 03:52 AM writes...

For goodness sake, it was a partially exposed breast. Every one has breasts. Except for functionality and and size, men's and women's breasts are very much the same. Just about everybody nursed off of one as a baby. But for some reason people are really, really afraid of them--but only if they are on a women.

I couldn't help be amused by a TV talk show. A man had breast implants to win a bet. The show blurred his breasts--man boobs--so as not to offend.

We have such mixed priorities that we can watch people being shot and blown up and dogs biting peoples crotches but one partially exposed nipple and everything blows up. Hell, they even showed the "hair gel" scene from Something About Marry on broadcast TV, but no fine for that!!!!

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5. akmdave on September 24, 2004 06:43 PM writes...

As I wrote, and think even most parents of small children would agree, it was not the level of nudity per se that I would have had a problem with. Indeed, I would turn off the TV if I found my daughter watching fully clothed people dry-humping to music. That's one reason I'll put on country videos (CMT) but not MTV -- I do not want my children learning to dry-hump each other or their playmates, they can play with themselves in private. But I have no problem with nudity that is not so vulgarly sexualized.

Maybe the half-boob was merely a hook to justify what's basically a fine for dirty dancing on a "family show" on broadcast TV, but the public's reaction -- which has not been seen before with nudity on shows oriented to adults, playing later in the evening -- I think shows that the FCC's action was not arbitary.

The "hair gel" scene -- like, say, the double entendres on the Simpsons -- would not endanger a child's innocence because it would go over the heads of anyone so young to be so affected.

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6. Dan on September 30, 2004 01:59 AM writes...

An show yesterday on the Disney Channel ("Sister, Sister", I think) featured a field trip to an art museum, where various artistic nude paintings and sculptures were exhibited (and commented on humorously by the characters). Some bare breasts could be seen. I guess that's OK (even by Disney standards) if it's art...

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