Lycos said that Jackson and searches related to the Super Bowl halftime show the day after the big game amounted to 80 times more searches than did the usual No. 1 celebrity search, Britney Spears. In fact, Jackson and halftime searches that day outscored even the largest one-day total for terrorist-related searches on and after September 11, 2001.
The FCC have said that they have received over 200,000 complaints. The day after the event, FCC chairman Michael K Powell called the broadcast a “classless, crass, deplorable stunt” and promised that the FCC would deliver a thorough and swift investigation.
It is unclear just how far the investigation has progressed to date.
The FCC’s first investigative step will be to determine whether the moment when Justin Timberlake swiped Jackson’s top was obscene or indecent. Obscenity is the more serious charge and would be much harder to prove. According to the FCC’s guidelines, programming can be judged obscene only if it “appeals to the prurient interest,” depicts sexual activity in “a patently offensive way,” and has zero literary, artistic, political, or scientific value.
So far as the FCC is concerned, neither Jackson nor her partner-in-time Justin Timberlake, can be touched. The agency jurisdiction extends only to the broadcast licensees, being the CBS affiliates. Their right to broadcast means they are subject to the FCC’s broadcast decency standards.
The question they face is whether the stunt was indecent or obscene. The latter test is strict and difficult to prove. Indecency, however, is another ball game altogether. If appropriate measures were not deemed to have been taken to have avoided the images that so shocked the nation, then the affiliates and network may face stiff penalties.
Earlier this month, for example, the FCC fined Young Broadcasting $27,500—the maximum per-incident, per-station fine allowable by law—for a moment of male full-frontal nudity on the Oct. 4, 2002, episode of KRON 4 Morning News in San Francisco. The show’s guests that day were the Australian pair behind Puppetry of the Penis, a hit show in which the male member is contorted into various unnatural shapes. While preparing to demonstrate a bit of “genital origami” to the hosts, one of the performers inadvertently let his package slip into the camera’s view. Though the exposure lasted less than a second, the FCC ruled that KRON-TV “failed to take adequate precautions to ensure no actionably indecent material was broadcast.”
Given that stringent test, it’s more likely that the FCC will focus on the question of whether the Super Bowl incident was indecent—that is, titillating beyond the bounds of good taste.
Unlike obscene material, indecent material isn’t illegal in and of itself, as the courts have ruled that it’s protected by the First Amendment. But the FCC’s rules stipulate that indecent material can’t be aired during hours when children are likely to be in the audience—specifically, between 6 a.m. and 10 p.m. The infamous breast exposure occurred well before the evening deadline.
Indecency, however, is not illegal. The issue may be one that is protected by the first amendment.
Jackson is faced with a lawsuit already, from a Tennessee woman. The suit, filed earlier this week in federal court in Knoxville, Tennessee, also names pop star Justin Timberlake, who performed with Jackson, CBS Broadcasting, show producer MTV, and the parent of those two companies, Viacom.
CBS and Viacom said they had no comment on the filing. Nor has Jackson. However, the consequences of her act are likely to be more in terms of credibility as a performer than as a litigant.
The action seeks a court order to prevent anything like last Sunday’s stunt from being repeated on U.S. network television prior to 10 p.m. local time when children might be watching.
Meanwhile, the FCC promise to report to the nation on the breast that shocked America as soon as they can