The Big Picture and the Closeup

T&A TV and its Fig Leaves

Believe it or not, with the approach of this years Festivus Maximus, we are already about to celebrate the fourth anniversary of The Wardrobe Malfunction. Only a small percentage of the population, even of those who watched it, remembers who was playing in Super Bowl XXXVIII, and fewer yet remember the score (Patriots 32, Panthers 29 if you care). But everyone remembers the Malfunction.

If, like me, you were hanging on grimly during the halftime, hoping for the fun to begin (the first half having been a dull defensive slog), you probably didn’t feel the tedium lifting during the halftime show. It was a wallow in sexualized vulgarity of a sort to which, thanks to popular culture, we have all become numb. I quote from the Federal Communication Commission’s brief filed in the 3d U.S. Circuit Court of Appeals last year:

The show began with Janet Jackson’s performance of the song, “All for You,” which opened as follows:

All my girls at the party

Look at that body

Shakin’ that thing

Like I never did see

Got a nice package alright

Guess I’m gonna have to ride it tonight.

Jackson repeated these lyrics – two additional times – during the song. Two other performers, P. Diddy and Nelly, followed with a song medley that also included sexual references. Among the lyrics in the Nelly song “Hot in Here” were: “I was like good gracious ass bodacious … I’m waiting for the right time to shoot my steam (you know)”and “[i]t’s gettin’ hot in here (so hot), so take off all your clothes (I am gettin’ so hot).” During this medley, Nelly grabbed his crotch several times.

“

You could watch this whole thing and never experience a moment of involvement, never mind sexual stimulation. The only interesting thought it provoked (and I’m sure I was not alone in thinking it) was that this certainly was not your father’s halftime show. Then came the Malfunction, and I return to the FCC brief:

At the culminating moment of both the song and the halftime show, Timberlake sang the lyric, “gonna have you naked by the end of this song” and simultaneously pulled off the right portion of Jackson’s bustier, clearly exposing her breast to the television audience.

As the FCC wordsmiths nicely evoked, confirming my contemporaneous impression as a viewer, the Malfunction was of a piece with everything that had gone before. And yet we all know that, without the Malfunction, there would never have been any enforcement action against CBS. That 9/16ths of a second of Janet’s breast, the nipple encircled by a sunburst medallion, made all the difference.

Because of that 9/16ths of a second, the FCC commenced File No. EB 04 IH 0011, an enforcement action to fine CBS over half a million dollars. The enforcement action was the FCC’s comic regulatory counterpart of FEMA’s tragic Katrina response and the Pentagon’s far more tragic mismanagement of Iraq: an insanely incompetent piece of governance conducted by administrators chosen for their allegiances rather than their smarts or their integrity.

In order to penalize CBS, the FCC had to ride roughshod over all the limitations in the Supreme Court’s decision in FCC v. Pacifica Foundation (1978), and its own prior decisions following Pacifica which cautioned that in enforcing decency rules, fleeting and unrepeated presentations of indecent material must not be penalized. The FCC had to ignore Supreme Court precedent giving “breathing space” for offensive speech in order to allow protected speech to occur. The FCC had to ignore its own recent precedent allowing fleeting nudity in primetime TV. The FCC had to close its mind to strong evidence that CBS had no idea the Malfunction had been planned, not to mention obliterating constitutional scienter requirements. And most of all, the FCC presumed, rather than investigated, the answer to a key regulatory question: whether contemporary community standards were truly offended by the Malfunction.

And that is the rub. A truly dispassionate look at the issue, devoid of context, i.e. the Super Bowl, would probably have found very little offense. The fact is, we live in a society drenched in sexual imagery, much of it quite pornographic. Compared to what most of us see most days, 9/16ths of a second of bare nipple is nothing. (You don’t need Playboy; this week’s issue of the tony New Yorker reproduces quite an erotic and very detailed bare-breasted photo of Lee Miller by Man Ray, for instance. My more than casual glance at it undoubtedly consumed more than 9/16th of a second.) Were we as a society so offended by all that imagery, all that sex talk, all that porn, the sense of offense would be far more articulate and pronounced. In truth, most of us revel in the better erotica and are turned off by the worse, e.g. the 2004 Super Bowl show.

But the Super Bowl is a unique context. The regulators undoubtedly and rightly felt they could read the applicable standards unmediated by any poll. Let us be frank. The Super Bowl is beloved by much of the populace, but especially, it is a high sacrament of so-called “values voters,” a key constituency that put Bush and the majority of the FCC Commissioners in office.

Football is thought, all the ambiguous evidence notwithstanding, to build character, faith and patriotism. Hence football, along with stock car racing, is the quintessential Bible Belt sport. But football also plays to a cleavage, if I may use the term here, between the professed and the actual standards of many of its fans.

Take away the Super Bowl XXXVIII halftime’s crotch-grabbing singers and sleazy lyrics and the Jackson Malfunction, and you still have cheerleaders. The eroticism of their gyrations, the upskirt suggestiveness of their kicks, their jiggle, all scream sex. Not for nothing did Debbie do Dallas. On the field, the players swagger and slap each other on the rear with elaborately mannered sexuality, and wear pads that suggest even more pumped up male musculature than steroids may afford. In common with other professional athletes, they are viewed in popular culture, probably with justification, as beneficiaries of constant female sexual availability off the field. Football, in short, is about a lot of things, but a big thing it is about is sex.

The 2004 halftime show, then, was all about sex, but hardly more so than the game before and after it.

So here is the apogee of a highly sexualized sport adored by voters who profess a great discomfort with sex in our culture. It is a contradiction that absolutely requires, quite literally, a fig leaf to reconcile. And what Justin Timberlake did was literally, not merely figuratively, tear away that fig leaf. It doubtless outraged the standards of the community that counted with the FCC — I mean the community that counted, along with the normal vested interests, like the telephone companies that had sent Commissioner Robert McDowell to the agency and the cable companies responsible for Commissioner Kevin Martin.

It is not the reality of a sexless world these voters want, not even in fact a sexless world in the hours when broadcast TV is watched by children; if it were, the kids would never be allowed to watch the Super Bowl, all macho swagger and cheerleader jiggle and beer commercials full of horny young men and pneumatic young women. What is desired is a pretended absence of sexuality, the token and indeed the mechanism of which is that fig leaf. No wonder there was such fury when it was ripped away.

The 3rd Circuit has yet to rule on the legal issues, and the case may well not end there. Before all is said and done, it may go to the Supreme Court, which is ordinarily quite protective of commercial speech. As with Super Bowl XXXVIII itself (37 points in the last 15 minutes), the ending of the case may be far more gratifying than the beginning.

But, win or lose, one can understand the FCC’s thinking. The commissioners must know that they play a minor cultural role, that movies and cable and the Internet are full of sex without fig leaves, and that they cannot really prevent the eroticization or the debasement of our culture. But they could do their bit. The half-million dollar fine is itself a fig leaf, a tribute to the ideal of a world that might be better than this, but which is long gone, and to which we can only pretend to belong.