The "Wardrobe Malfunction" - Ten Years Later

Unless you’re a fan of the New England Patriots or the Carolina Panthers, it’s unlikely you remember very much from Super Bowl XXXVIII, played on February 1, 2004 – except maybe the halftime show. [caption id="attachment_1660" align="alignright" width="240"] Super Bowl Halftime. February 1, 2004[/caption] When Justin Timberlake and Janet Jackson performed a strip-tease act in front of the biggest television audience of the year, it is one of those seminal cultural moments where people tend to remember where they were and what they were doing. Now, ten years later, there seems to be some purposeful amnesia about just how shocking the “wardrobe malfunction” was. In an irony too delicious to ignore, ESPN has put a click-through warning on their own story saying it features "mature subject matter and language." First off, a few facts: 1. The 2004 Super Bowl averaged nearly 90 million viewers, and was the highest-rated television program of 2004 (as Super Bowls typically are). 2. This means there were necessarily millions of children in the audience 3. In the immediate wake of the incident, more than half a million Americans filed complaints with the FCC about the incident. 4. Janet Jackson apologized for her role in the incident. 5. So did Justin Timberlake. 6. So did then-NFL Commissioner Paul Tagliabue. 7. So did then-CBS president Les Moonves, who even launched his own internal investigation. 8. The incident was the subject of at least one Congressional hearing. 9. In 2006, Congress passed the Broadcast Decency Enforcement Act which stiffened the maximum possible fines available to the FCC for violation of federal Broadcast Decency Law. 10. The Supreme Court ultimately threw out the FCC’s fine against CBS for the incident on procedural grounds, and the PTC was sharply critical of the Circuit Court’s decision as well as the Supreme Court’s failure to revisit it. 11. Ultimately, Chief Justice Roberts wrote this in his decision – and now ten years later, we await the FCC’s next move: "It is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure," he said. "Any future 'wardrobe malfunctions' will not be protected on the ground relied on by the court below." So, clearly and unambiguously – the Super Bowl striptease of 2004 was a very big deal. So why mention it now? Because it benefits the entertainment industry to pretend otherwise. Back in 2004 Michael Powell was Chairman of the Federal Communications Commission, and at the time he said: Powell said he was watching the game Sunday evening with his two children and found the incident "outrageous." "I knew immediately it would cause great outrage among the American people, which it did," he said, citing "thousands" of complaints received by Monday morning. "We have a very angry public on our hands." Powell said MTV and the CBS network's more than 200 affiliates and company-owned stations could be fined $27,500 apiece. "I think it's all of their problem," he said. "The law allows you to reach many of the different parties." He said he would like to see the enforcement penalties strengthened to 10 times their current amount. "We all as a society have a responsibility as to what the images and messages our children hear when they're likely to be watching television," he said. "I don't think that's being moralistic, and I don't think that's government trying to tell people how to run their businesses. I don't think you need to be a lawyer to understand the basic concepts of common decency here." Powell said he "expressed my great displeasure" over the incident in a telephone call Monday with CBS President and CEO Mel Karmazin, who "promised to cooperate" with the investigation. Today, Powell has a cozy job as the cable industry’s top lobbyist in Washington, and seems to have now changed his tune about the Super Bowl striptease, saying Jackson was treated unfairly. That may be true, but the incident was never about Jackson or Timberlake themselves – it was always about what broadcast decency law obligates broadcasters to abide by, the FCC’s legal obligation to enforce it, and, ultimately the media environment our children grow up with. This is just as true today as it was ten years ago -- and the PTC will be here to hold networks accountable for how they impact our children.