Does the First Amendment Protect Janet Jackson and Justin Timberlake?
A Brief Primer on the Constitutional Law of TV Decency Regulation

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 finale.

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.

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.

As I explained in an earlier column, 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.

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"?

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.

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 destruction.