[ql06] CON LAW: Boob Tube v 1st Amendment

  • From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
  • To: ql06@xxxxxxxxxxxxx
  • Date: Wed, 04 Feb 2004 18:12:11 -0500

I was reading one of the reports on Janet Jackson's revealing half-time 
show in the German press. They find it really strange that anyone cares 
at all. Naked breasts are common fare on TV, in magazine and newspapers 
(not to mention on the beaches and in the parks) in most European 
countries, and they simply don't see what the fuss is all about.

Another thing Germans find odd about the Super Bowl half-time show is 
all the flags flying and paeans to American valor and virtue. Germans 
have seen that sort of stuff before and know where it leads.

But enough about the Germans. Here's an American law prof's take on 
whether Janet Jackson's performance would be protected by the First 

*Warning: Long Article*

Does the First Amendment Protect Janet Jackson and Justin Timberlake?
A Brief Primer on the Constitutional Law of TV Decency Regulation
Wednesday, Feb. 04, 2004

Faster than you can say "election year," the breast seen 'round the 
world has given rise to a federal probe of the Super Bowl halftime show. 
That's right. Federal Communications Commission Chairman Michael Powell 
is investigating the entire halftime show, not just the breast-baring 

According to Powell, Justin Timberlake's exposure of Janet Jackson's 
right breast during the closing moments of the halftime show "wasn't 
even the most offensive part." Powell claims that "the whole performance 
was onstage copulation."

Onstage copulation? Isn't that the definition of "music video?" 
Apparently Mr. Powell is unfamiliar with most of the MTV oeuvre.

Was the halftime show unsuitable for the millions of small children 
watching? Sure. But so are half the shows on prime-time television. And 
more importantly, the First Amendment provides that "Congress shall make 
no law . . . abridging the freedom of speech." How, then, can the FCC 
impose fines on the halftime performers and broadcasters, as it has 
threatened to do?

The late Justice Hugo Black, who fashioned himself a First Amendment 
absolutist, liked to dismiss arguments for censorship by waving the 
Constitution and exclaiming that "'no law' means no law." But his 
brethren did not agree, and so, notwithstanding the First Amendment, 
Jackson, Timberlake and the broadcasters may indeed find themselves in 
hot water.


The Framework for FCC Regulation


Because licensing is necessary to prevent competing broadcast signals 
from drowning one another out, Congress and the FCC have long imposed a 
quid pro quo: in exchange for valuable FCC licenses, radio and 
television broadcasters must accept some limits on their programming.

There is real doubt as to whether the scarcity of the electromagnetic 
spectrum actually justifies limits on the content of broadcasts. Other 
means of communication rely on scarce commodities as well; yet the 
Supreme Court has not allowed the sort of intrusive regulation of other 
media that it permits for broadcasters.

But in any event, even putting aside the differential treatment of 
different media, it is clear that broadcasters still retain substantial 
free speech protection. To give an obvious example, a federal statute or 
regulation barring programming critical of the Iraq war would clearly 
violate the First Amendment.

Such speech on matters of national importance, however, is a far cry 
from a sexual display. Accordingly, the Supreme Court has upheld the 
FCC's basic framework for regulating obscene and indecent programming. A 
federal regulation imposes a blanket ban on "obscene" material, and 
restricts broadcasts that are "indecent" (but that fall short of being 
obscene) to between the hours of 10 p.m. and 6 a.m., when, it is 
assumed, few young children will be in the audience.


Are the FCC Obscenity/Indecency Regulations Constitutional?


Supreme Court precedents confirm the constitutionality of the FCC 
regulation. Obscenity, as defined by the Court in the 1973 case of 
/Miller v. California/, refers to works that, taken as a whole, appeal 
to the prurient interest; contain patently offensive depictions or 
descriptions of specified sexual conduct; and on the whole have no 
serious literary, artistic, political, or scientific value. Because the 
Court has ruled that obscenity is not protected speech, the FCC may ban 
it entirely.

By describing the "whole performance" of Timberlake and Jackson as 
"onstage copulation," FCC Chairman Powell may have been laying the 
groundwork for an obscenity charge. Such a charge would likely fail, 
however, because the performance had serious artistic value.

The portion of the obscenity test that looks to artistic value is not 
meant to distinguish between good and bad art or even between highbrow 
and lowbrow art, but between art that presents itself as art and "art" 
that is, in reality, a thinly veiled sex act. Thus, playing a Mahler 
symphony as the background music for a hardcore pornographic movie would 
not bestow serious artistic value on the film.

Whatever FTC Chairman Powell may think, the Timberlake-Jackson duet was 
more than merely a sex act in the guise of art. Though hardly to 
everyone's tastes, both are mainstream pop artists who have sold 
millions of recordings. Their duet was better described as a very 
sexually suggestive musical performance than as sex set to music.

Accordingly, the FCC will likely proceed not under the obscenity ban, 
but rather under the prime-time indecency ban, which was upheld by the 
Supreme Court in the 1978 case of /FCC v. Pacifica/. That decision 
sustained the commission's power to sanction a New York radio station 
for broadcasting George Carlin's monologue on "Filthy Words" in the 
middle of the afternoon.

In /Pacifica/, the Court cited the interest in protecting children, as 
well as the fact that people surfing the dial might inadvertently find 
themselves listening to what the Justices described as "offensive" if 
not obscene material. Since the same interest and risk are present when 
it comes to television, the TV primetime broadcast indecency regulation 
is constitutional according to /Pacifica/.

That leads to the key question: Could the Jackson-Timberlake duet be 
deemed "indecent"?


Is a Bare Breast "Indecent?"


The FCC regulation's definition of "indecency" sets a lower threshold 
than the constitutional requirements for "obscenity." It defines 
indecency as "language or material that, in context, depicts or 
describes, in terms patently offensive as measured by contemporary 
community broadcast standards for the broadcast medium, sexual or 
excretory organs or activities."

Is an adult woman's bare breast necessarily indecent under this 
definition? Probably not. One can certainly imagine circumstances in 
which the mere sight of a bare breast would not, or should not qualify, 
as indecent--a medical report on breast cancer or a frame of a 
breast-feeding mother, for example.

Nonetheless, Jackson's breast was bared in a sexualized setting; her 
costume was ripped open by Timberlake in the course of a number that 
included the lyric, "I'll have you naked by the end of this song." The 
deluge of subsequent viewer complaints and the general outcry have made 
quite clear that some substantial portion of the TV audience found the 
display "patently offensive."

Indeed, as far as the First Amendment is concerned, the FCC may be on 
stronger ground precisely because the performance included a bare 
breast. In the 2000 case of /City of Erie v. Pap's A.M./, the Supreme 
Court upheld a ban on public nudity, which had the effect of forbidding 
dancers at an adults-only private club from completely baring their breasts.

To be sure, there are three reasons why the /Pap's /precedent may be 
inapplicable. First, the Court was fractured, producing no single 
opinion that spoke for a majority of the Justices.

Second, /Pap's /involved a rationale for regulation that clearly does 
_not _apply to Jackson and Timberlake. In /Pap's /the Court was 
concerned about what it characterized as the "secondary effects" of the 
adult entertainment industry: prostitution and other criminal activity 
that tends to increase in the vicinity of such establishments. It can 
hardly be argued that the brief display of Janet Jackson's breast was 
likely to lead to an increase in criminal conduct in many of the places 
that the Super Bowl was seen.

Third, the law at issue in /Pap's/ required female erotic dancers at 
least to obscure their nipples with pasties. Janet Jackson's breast 
_was_ adorned with a pasty; if /Pap's /can be read to say that there is 
a constitutional right to display naked breasts in public so long as 
they are decorated with pasties, then perhaps the halftime show falls on 
the protected side of the line.

But that is a big "if." The /Pap's /case more generally affirms the 
principle that the message of an erotic performance is not unduly 
undermined by a rule requiring that dancers be at least somewhat 
clothed. If that's the First Amendment rule for an audience consisting 
entirely of consenting adults, it's hard to argue that the Constitution 
is more permissive for a worldwide broadcast to millions of unsuspecting 
viewers, including millions of minors.


Is State of Mind Relevant? What if the Broadcasters Did Not Know in Advance?


CBS, which broadcast the Super Bowl, claims that it had no advance 
knowledge of the Jackson-Timberlake finale. Somewhat less credibly, MTV, 
which produced the halftime show and promoted what it billed as "some 
shocking moments," has also pleaded ignorance. And Timberlake has blamed 
Jackson's exposure on a "wardrobe malfunction." Does it matter whether 
some or all of these protestations are true?

Certainly it would be unfair to impose criminal sanctions for an honest 
mistake. Suppose that during the course of the game itself, the uniform 
of one of the players ripped open, exposing his genitalia. If the camera 
lingered on the scene, then surely the broadcasters could and should be 
held accountable. But if, as appeared to be true in the actual halftime 
incident, the network cut away within a second or two, it would be hard 
to find fault--unless one had reason to think that the whole incident 
was planned in advance.

Thus, putting aside FCC Chairman Powell's interest in investigating the 
entire halftime show, the FCC inquiry will likely focus on whether the 
exposure of Jackson's breast was planned, and if so, who had advance 
knowledge of it. Powell has promised a "thorough and swift" investigation.

What a terrific idea! If only such alacrity were envisioned for the 
inquiry into what was known by whom about, say, Iraq's weapons of mass 

Michael C. Dorf is Professor of Law at Columbia University. His new 
book, Constitutional Law Stories, is published by Foundation Press, and 
tells the stories behind fifteen leading constitutional cases.

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