Sonya Rahders, Staff Editor
I didn’t watch the Super Bowl last weekend. If you really want to know, I spent my Sunday watching Sons of Anarchy instead. But that’s a whole host of gender and legal issues for another time. So, I didn’t watch the Super Bowl. But since I was also surfing social media, it was almost impossible to avoid paying some attention to what was going on with the NFL. Apparently, the most important question of the evening was whether Bruno Mars put on a better halftime performance this year than Beyonce did last year. Of course, I didn’t see those either. But there was something a little irresistible about competing pop superstars, especially ones with whom I am admittedly unfamiliar.
As I delved deeper into YouTube halftime archives, I was reminded of the tales of another Super Bowl halftime show I didn’t see, one that lives in infamy among sporting events and broadcast shows: the night the world saw Janet Jackson’s nipple. “Nipplegate” occurred ten years ago, during the 2004 Super Bowl halftime show. Either a “wardrobe malfunction” or a poorly planned performance stunt culminated in Justin Timberlake removing one panel of Janet Jackson’s bodice, and her star-adorned breast appeared momentarily for the nation to see. The fallout was instantaneous and vicious. Before I found that footage last Sunday, I visited this excellent article that Rolling Stone published last week, chronicling the incident and the aftermath ten years later. Did you know that that wardrobe malfunction started years of litigation about the indecency of a bared breast? I didn’t either.
The Federal Communications Commission (FCC) initially levied heavy fines against CBS Network for broadcasting “a deceitful and manipulative act that lasted nine-sixteenths of one second.” CBS Corp. v. F.C.C., 535 F.3d 167, 171 (3d Cir. 2008). Contrary to the FCC’s previous general reluctance to punish indecent behavior on live television unless it was exceptionally shocking, the agency determined that Jackson and Timberlake’s supposed willful exposure of a “sexual organ” violated common standards of decency, and the incident’s brevity was outweighed by the fact that it was patently offensive (172). But the Third Circuit Court of Appeals found that this action was inconsistent with the FCC’s history of restrained enforcement of indecent “fleeting material” (188) and reversed the fines. In other words, the FCC had never gotten quite this mad about an “indecent” slip-up, and they had no good reason to start now.
The U.S. Supreme Court granted certiorari in 2009 (F.C.C. v. CBS Corp., 556 U.S. 1218), but told the Third Circuit only to reconsider the case in light of another case recently decided in favor of the FCC against Fox News. In F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (having to do with broadcasted cuss words), SCOTUS held that the FCC didn’t actually need to show reasons for deviating from previous policy or enforcement practice. Just because they had taken it easy on an issue before didn’t mean that they couldn’t impose harsher penalties now, just because they felt like it. On remand, the Third Circuit acknowledged this change in position, but upheld their prior decision that the fines against CBS for Nipplegate were arbitrary. CBS Corp. v. F.C.C., 663 F.3d 122 (3d Cir. 2011). In April 2013, the FCC issued notice for comments on whether, following the Fox case, they should consider relaxing indecency standards for individual occurrences of profanity or nudity. Public response to the idea of change has been swift and indignant.
In the end, CBS didn’t have to pay the half-million-dollar fine for Jackson’s wardrobe malfunction. But nobody really got away clean. According to the Rolling Stone article, last month the former chairman of the FCC admitted regrets for the way that the agency treated Jackson. Her career suffered from the negative publicity. The star-studded celebrity-revue-style Super Bowl halftime show was ditched in favor of single acts and classic rockers. But more importantly, I hope many people were left wondering if a female breast is really so indecent that a fraction of a second exposure is deserving of all this uproar. Are human breasts really so offensive? We still face negative perceptions of women breastfeeding in public spaces, sometimes manifesting in severe punishments or even arrests. We still battle racialized notions of which breasts are more offensive than others (or the idea that certain bodies are exoticized and/or desexualized.) We still sexualize and pink-wash breast cancer awareness campaigns, while one in three women are too scared to check themselves for irregularities. Ten years after Nipplegate and millennia after nipples were invented, we are still afraid of breasts. At least Bruno Mars didn’t offer much to be afraid of this year.