Keeping Abreast of Recent Decency Law Developments in Light of Janet Jackson's Super Bowl Halftime Show

By Judith A. Endejan and Michael G. Atkins
February 3, 2004

Janet Jackson's now infamous Super Bowl halftime show - in which she exposed a breast to millions of viewers on February 1 - drew immediate criticism from Federal Communications Commission Chairman Michael Powell and may subject each CBS station that aired the broadcast to a possible fine of $27,500. While nudity clearly is still not acceptable on broadcast television (at least during the Super Bowl), it is always difficult for broadcasters to determine what on-air communication is ok, and what will land them afoul of federal regulators.

For instance, the FCC's enforcement bureau in October denied 200 citizen complaints that U2 lead singer Bono's televised comment at the 2003 Golden Globe Awards that "This is really, really, f------ brilliant" was obscene and indecent. Yet last month, Chairman Powell proposed a ruling that, if adopted by two of the four commissioners, would overturn that decision.

So what content is merely risquè and what is illegal? George Carlin's Seven Dirty Words briefly provided a bright-line test, but the test today is less certain, as the FCC's treatment of Bono's comment illustrates. Understanding how the FCC applies its regulations can demystify the process and help broadcasters avoid costly disputes, penalties, and-in extreme cases-forfeiture of a station's license.

Source of FCC Regulations
The FCC's power to regulate broadcast content comes from Title 18 of the United States Code, Section 1464, which prohibits the use of "any obscene, indecent, or profane language by means of radio communication." Federal courts have upheld Congress' authority to regulate obscene speech and, to a limited extent, indecent speech. Under FCC rules, no radio or television licensee may broadcast "obscene" material at any time, or broadcast "indecent" material from 6 a.m. to 10 p.m. The First Amendment protects all other content regulation, and decency regulations do not apply to cable-only programming. Therefore, radio and broadcast television stations should focus on whether their programming is "obscene" or "indecent." These terms are discussed below.

Obscene Communication
To be obscene, material must meet a three-prong test:

The average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

Programming the FCC deems "obscene" usually depicts or describes raunchy sexual conduct. In Bono's case, the FCC's enforcement bureau found that an expletive alone does not render material obscene. Janet Jackson's performance probably also does not meet this test because it arguably did not depict sexual conduct or, taken as a whole, lack serious artistic value.

Indecent Communication
Charges that a broadcast is "indecent" are much more common, and includes material that does not rise to the level of "obscene." To be "indecent," the FCC must find that:

The material must depict or describe, in a patently offensive
way, sexual conduct specifically defined by applicable law; and

The broadcast is "patently offensive" as measured by contemporary community standards for the broadcast medium.

In determining whether material is "patently offensive," the FCC must consider the full context in which the material appeared, including the explicitness of the depiction or description, whether the material repeats the depiction or description of sexual or excretory organs or activities, and whether the material appears to pander or is used to titillate or shock.

Community standards are not based on any particular geographic area, or any particular viewer or listener. The FCC instead attempts to weigh the sensibilities of the "average" broadcast viewer or listener.

If the FCC finds complained-about material to be "indecent," and aired between 6 a.m. and 10 p.m., it will find a violation.

Examples of "indecent" material include sexually-charged descriptions or depictions of penises, testicles, breasts, and sex acts. The FCC's enforcement bureau found that Bono's exclamation may have been crude and offensive, but did not meet the first part of the indecency test because it did not describe or depict sexual or excretory organs or activities. In its words, "the performer used the word 'f------' as an adjective or expletive to emphasize an exclamation." It also found that it was a "fleeting and isolated remark" that did not warrant FCC action.

Will the FCC reach a similar conclusion with Janet Jackson? Not likely, considering the public comments the commissioners have already made. The performance involved an exposed breast and, though brief and unrepeated, the FCC probably will find that the act was intended to titillate or shock. The facts that at the time of the exposure, co-performer Justin Timberlake sang the line "I'll have you naked by the end of this song," that he grabbed Ms. Jackson's bustier, and that Ms. Jackson's breast sported jewelry all support this conclusion. Commissioner Powell already has made much of the fact that the performance was aired at a time when many children were in the audience and that families do not expect to see nudity during the Super Bowl. Whether the FCC penalizes CBS or its affiliates that aired the event remains to be seen.

Proposed Legislation
In response to the FCC's handling of Bono's statement, several congressmen have either proposed decency legislation or stated that they intend to do so. At least one proposal includes banning the use of certain words notwithstanding context. All proposals intend to tighten the FCC's control over what some in Congress view as indecent content. Janet Jackson's performance may spark other bills. We will alert you in a future Cyber-Graham if any of the proposals become law.

For more information, contact Judith A. Endejan (206.340.9694 or jendejan@grahamdunn.com) or Michael G. Atkins at (206.340.9614 or matkins@grahamdunn.com).