Super Bowl XXXVIII halftime show controversy



Super Bowl XXXVIII, which was broadcast live on February 1, 2004 from Houston, Texas on the CBS television network in the United States, was noted for a controversial halftime show in which Janet Jackson's breast, adorned with a nipple shield, was exposed by Justin Timberlake for about half a second, in what was later referred to as a "wardrobe malfunction". The incident, sometimes referred to as Nipplegate, was widely discussed. Along with the rest of the halftime show, it led to an immediate crackdown and widespread debate on perceived indecency in broadcasting. The Federal Communications Commission (FCC) fined CBS a record $550,000, but that fine was appealed and ultimately voided by the Third Circuit Court of Appeals in a 2011 ruling.

The incident was ridiculed both abroad and within the United States, with some American commentators seeing the incident as a sign of decreasing morality in the national culture,   and the increased regulation of broadcasting raised concerns regarding censorship and free speech in the United States. The FCC increased the fine per indecency violation from $27,500 to $325,000 shortly after the event. The show was produced by MTV and was supposedly themed around the network's Rock the Vote campaign, though the theme was quickly dispensed within the first minute of the show without any mentions after that point. Following the wardrobe incident, the NFL announced that MTV, which also produced the halftime show for Super Bowl XXXV, would never be involved in another halftime show.

The incident
Jackson and Timberlake performed a medley of Jackson's songs "All for You" and "Rhythm Nation" and Timberlake's song "Rock Your Body" during the halftime show. The performance featured many suggestive dance moves by both singers, and as Timberlake reached his final line of Rock Your Body, "I'm gonna have you naked by the end of this song," Timberlake pulled off a part of Jackson's costume, revealing her right breast, partially covered by a piece of nipple jewelry, for less than a second. In the immediate aftermath of the incident, the CBS broadcast cut to an aerial view of Reliant Stadium, but was unable to do so before the picture was sent to millions of viewers' televisions.

Besides Jackson's exposure, the show's other performances included gestures by the rapper Nelly toward his crotch and the musician Kid Rock appearing in a poncho made from a slit American flag, which was later removed by a stage hand.

United States
In the United States, the exposure of Jackson's nipple by Timberlake led to much media controversy and headlines, in which it was sometimes referred to as Nipplegate. The socially conservative media watchdog group Parents Television Council (PTC) issued a statement that same day condemning the halftime show, announcing that their members would file indecency complaints with the FCC and the council supported the FCC's decision to investigate the halftime show immediately. In addition, the FCC received nearly 540,000 complaints from Americans, with the PTC claiming responsibility for around 65,000 of them. In its appeal to the Third Circuit Court, CBS disputed how many of the complaints were filed by individual, non-organized viewers. Columnists L. Brent Bozell III (who is also the founder of Parents Television Council) and Phyllis Schlafly also expressed criticism of the halftime show in their respective weekly columns. Democratic senator Zell Miller of Georgia, both on the floor of the United States Senate and in an editorial on Salon.com, denounced the halftime show as what he perceived as declining morality in America. On the day immediately following the Super Bowl, then-FCC chairman Michael Powell ordered an investigation into the halftime show. Timberlake told KCBS-TV a few days following the Super Bowl that even his own family was offended by the Super Bowl mishap. However, an Associated Press poll taken nearly three weeks after the Super Bowl found that although 54% of American adults considered the exposure distasteful, only 18% supported the FCC's investigation.

The Super Bowl controversy was also a subject of comedy all across the late-night television shows. For example, CBS's own Late Show with David Letterman mocked the incident all week following the Super Bowl. Host David Letterman jokingly commentated on the controversy the day after the Super Bowl that he "was happy to see this thing happen ... because that meant for one night I wasn't the biggest boob on CBS". The next day, he also joked that President George W. Bush formed a "Department of Wardrobe Security" to prevent further wardrobe malfunctions. On February 4, Letterman opened his monologue by joking about having a wardrobe malfunction. Additionally, the Top Ten Lists featured on the program on that same night and two nights later briefly referenced the incident.

South Park took aim at the hysteria in its eighth season premiere, "Good Times with Weapons", on March 17 of that year when Eric Cartman sneaks across a stage in the nude and later blames the incident on a "wardrobe malfunction". The townspeople are angered by Cartman's display, rather than feeling concern for a badly injured and disoriented character (Butters) who is also present on stage. This is a reference to the American culture's acceptance of violence while maintaining a taboo against nudity. In the 2004 MTV Video Music Awards, comedian Dave Chappelle jokingly told MTV that his appearance in the VMA was "the biggest mistake since you put Janet Jackson on the Super Bowl." Family Guy also did an episode based around this "wardrobe malfunction," with one scene parodying it directly. The episode "PTV" involved actor David Hyde Pierce having a trouser malfunction at the Emmys.

The halftime show continued to be a subject of discussion in 2005. At the beginning of 2005, the parody newspaper The Onion ran as its headline article for January 26, 2005, "U.S. Children Still Traumatized One Year After Seeing Partially Exposed Breast On TV". The article's satirical target was the nation's reaction to the incident, rather than the incident itself. On February 1, 2005, exactly one year after the halftime show, the PTC released a report titled MTV Smut Peddlers: Targeting Kids with Sex, Drugs, and Alcohol, covering MTV programming during the network's "Spring Break" week from March 20 to 27, 2004, accusing MTV of irresponsibly promoting sex, drugs, and alcohol to impressionable youth. In response to the report, MTV network executive Jeannie Kedas argued that the report "underestimates young people's intellect and their level of sophistication." On February 6, however, New York Times columnist Frank Rich argued that censorship on television was becoming more prevalent following the halftime show in his February 6, 2005 column "The Year of Living Indecently". Examples he cited included more than sixty affiliates of ABC refusing to broadcast Saving Private Ryan due to the profanity prevalent throughout the film, which was to be aired unedited in its entirety by the network, and PBS editing obscene language out of certain programs such as the British terrorist drama Dirty War.

Canada
In Canada, where the show was broadcast by Global Television Network, the incident passed largely without controversy: only about 50 Canadians complained about the incident to the Canadian Broadcast Standards Council (CBSC). CBSC received roughly twice as many complaints about other aspects of the Super Bowl broadcast, including music and advertising issues (though some of those complaints were about Canadian content/simsub issues preventing viewing of the popular American ads). Professor Robert Thompson, director of the Center for the Study of Popular Television at Syracuse University, stated: "I know many people in other countries are scratching their heads and thinking 'What in the world is the big fuss over there?'"

Legal action
On February 4, Terri Carlin, a banker residing in Knoxville, Tennessee, launched a class action lawsuit against Jackson and Timberlake on behalf of "all American citizens who watched the outrageous conduct." The lawsuit alleged that the halftime show contained "sexually explicit acts solely designed to garner publicity and, ultimately, to increase profits for themselves." The lawsuit sought maximum punitive and compensatory damages from the performers. Ms. Carlin later dropped the lawsuit. Three months later, Eric Stephenson, a lawyer from Farmington, Utah, filed a $5,000 lawsuit in small-claims court against Viacom for false advertising of the Super Bowl halftime show, as he, the father of three young children, claimed that pre-game advertising led him to believe that the halftime show would consist of marching bands, balloons, and a patriotic celebration. The lawsuit was rejected because Stephenson should have filed a federal lawsuit or complaint to the FCC, which was already investigating the halftime show.

America Online, the Internet service provider that sponsored the halftime show, demanded a refund of the approximately $7.5 million that it paid to sponsor and advertise on the halftime show. However, no other advertisers of the Super Bowl had similar demands.



The incident triggered a rash of fines that the FCC levied soon after the Super Bowl, alleging that the context of the "wardrobe malfunction" was intended "to pander, titillate and shock those watching" because it happened within the lyrics within Timberlake's performance of Rock Your Body: "Hurry up 'cause you're taking too long ... better have you naked by the end of this song." In addition, the FCC cited a news article on the website of MTV (MTV.com) claiming that the halftime show would promise "shocking moments" and that "officials of both CBS and MTV were well aware of the overall sexual nature of the Jackson/Timberlake segment, and fully sanctioned it—indeed, touted it as 'shocking' to attract potential viewers." CBS, however, argued that the exposure was unplanned, although in later statements CBS asserted that while the exposure was unplanned by CBS, it was deliberately planned by Timberlake and Jackson "independently and clandestinely". On September 22, 2004, the FCC fined Viacom the maximum $27,500 (US) penalty for each of the twenty CBS-owned television stations (including satellites of WFRV in Green Bay, WCCO in Minneapolis, and KUTV in Salt Lake City; current CBS owned-and-operated station KOVR in Sacramento at the time was owned by Sinclair Broadcast Group) for a total $550,000 fine, the largest ever against a television broadcaster at that time. However, the Parents Television Council and even some of the FCC commissioners criticized the FCC for fining only twenty CBS stations, not all of them, for the halftime show. Sixty-six percent of respondents to a March 2005 Time magazine poll believed that the FCC overreacted to the halftime show by fining CBS.

On November 24, 2004, Viacom paid out $3.5 million to settle outstanding indecency complaints and stated that it would challenge the $550,000 penalty related to the incident. The Parents Television Council has frequently criticized the appeal because they have claimed hypocrisy in CBS's immediate apology in the days following the Super Bowl. In March 2006, the FCC affirmed that the Super Bowl halftime show was indecent, so CBS paid the FCC's issued fine in July 2006 in order to take their appeal against their fine to federal court. CBS appealed the fine on September 17 at the U.S. Third Circuit Court of Appeals in Philadelphia. On July 21, 2008, that court ruled in favor of CBS, throwing out the FCC's fine on the grounds that the enforcement involved a significant deviation from prior practice that wasn't announced as a clear policy change. On May 4, 2009, however, the Supreme Court vacated and remanded the case back to the Third Circuit for reconsideration in light of the previously decided Federal Communications Commission v. Fox Television Stations (2009).

CBS challenged its fine for the halftime show on the grounds that the broadcast was unintentional and thus exempt from indecency regulation. In July 2008, the United States Court of Appeals for the Third Circuit voided the FCC's fine, but in May 2009 the Supreme Court vacated that judgment and sent the case back to the Third Circuit for reconsideration. In November 2011, the Third Circuit ruled that the broadcast was legal under the FCC's then-current policy of allowing "fleeting" indecency on the airwaves, and that it was unfair of the FCC to change the policy retroactively.

On November 2, 2011, the Third Circuit Court ruled 2-1 that its earlier decision was correct.

On June 29, 2012, the Supreme Court declined an FCC appeal.

Commercials
Prior to the broadcast, CBS rejected the MoveOn.org Super Bowl ad Bush in 30 Seconds because it was deemed too controversial. CBS stated that it had a "decades-old" policy of rejecting ads regarding "controversial issues of public importance," although MoveOn charged that the networks had previously accepted similar ads from other groups. The Super Bowl broadcast featured numerous commercials for erectile dysfunction medicines and advertisements for Anheuser-Busch's Bud Light brand featuring a flatulating horse and a dog attacking male genitalia; however, no politically charged ads appeared. CBS, which also held the rights to Super Bowl XLIV, later aired a commercial during that game featuring then-Florida Gators quarterback Tim Tebow and his mother that discreetly refer to their pro-life viewpoints. The ad, sponsored by Focus on the Family, received similar controversy.

In a league-mandated policy meant to clear the airwaves of such advertisements, the NFL announced that those types of commercials would not air again during Super Bowl broadcasts (the league ended an advertising relationship with Levitra in March 2007 as an official league sponsor). Additionally, Anheuser-Busch said that ads akin to those would never be produced again. After its acquisition by Belgian brewer InBev in 2008, the Belgian brewer began to reduce its presence on NFL television, though this was related more to InBev's tendency on cost-cutting micromanagement to reduce overall costs as opposed to the halftime controversy.

In January 2005, Fox, the network that carried Super Bowl XXXIX under the alternating network contract, rejected an advertisement for the cold remedy Airborne that briefly featured the naked buttocks of veteran actor Mickey Rooney.

Mark Roberts
Moments after the Jackson-Timberlake tangle, streaker Mark Roberts added to the controversial halftime by running around the field naked except for some writing on his body which read "SUPER BOWEL" on the front, an advertisement for online betting website GoldenPalace.com, and a well-placed G-string attached to half a miniature football covering Roberts' genitals. Part of Roberts' stunt was seen on-air in America; CBS chose to keep its cameras in a wide-shot view of the stadium and use quick cutaways to players and coaches as Roberts ran around the field until players from both competing teams, the New England Patriots and the Carolina Panthers, tackled him. Matt Chatham, the Patriots' special teams expert and reserve linebacker initially knocked Roberts down, thus allowing stadium security and police to arrest Roberts and take him into custody.

Roberts returned on October 28, 2007, when the NFL staged the first regular season game played outside North America. Before the second half of the New York Giants-Miami Dolphins contest at London's Wembley Stadium, in what he dubbed "Super Bowel Returns", he streaked again.

Censorship and regulation of broadcasting
Website Soap Opera Central speculated that the fallout from this incident may have had a subtle effect on daytime television. These television shows are known for "love in the afternoon" and regularly feature romantic couplings; shortly before the Super Bowl, the Procter & Gamble soap operas As the World Turns and Guiding Light had gone as far as featuring rear male nudity during sexual scenes. After the Super Bowl controversy, FCC commissioner Michael J. Copps stated that it was time for a crackdown on daytime television and indicated that he was reviewing whether soap operas were violating the agency's indecency prohibitions.

Two other major sporting events that followed the Super Bowl that year also were forced to clean up their respective halftime shows following the incident. The Pro Bowl, which would be played on February 8 at Aloha Stadium in Hawaii, originally was to feature singer JC Chasez, who was a member of boy band 'N Sync as was Timberlake, sing the National Anthem before the game and perform his hit song "Blowin' Me Up (with Her Love)" at halftime. However, the NFL did not allow Chasez to perform during halftime due to the sexually suggestive content of his chosen song, (even though cable network ESPN carried the game, and is not under FCC control) replacing it with traditional Hawaiian dancers. The 2004 NBA All-Star Game also cleaned up its act, despite being broadcast on cable television channel TNT that was not under Federal Communications Commission (FCC) regulation as with all other cable channels, having halftime performer Beyoncé Knowles perform "Crazy in Love" rather than "Naughty Girl", which they feared would incite controversy given its sexual content. Jackson was in attendance at the game, and dressed conservatively. The networks that were to broadcast the 46th Grammy Awards and the 76th Academy Awards, live events scheduled for February 8 and February 29 respectively, initiated a delay (up to ten minutes) to ensure that profanity and obscenity were not seen or heard. The tape delays have since been reduced to the broadcast standard ten second delay.

Following these announcements, Guiding Light edited out nudity from an episode that had already been taped. A week later, the show's executive producer John Conboy was fired and replaced by Ellen Wheeler. All nine American network soaps began to impose an unwritten rule of avoiding any sort of risqué adult scenes, and in the months following, soap opera periodical Soap Opera Digest editors wrote about how daytime television was losing its steam. NBC also re-edited a scene from an episode of its medical drama ER where paramedics were wheeling an elderly woman into the hospital, and her breast could be seen non-explicitly in the context of her injury and treatment. Even as late as Veterans Day of 2004, 65 ABC network affiliates pre-empted the uncut network presentation of the film Saving Private Ryan over concerns about the film's violent and profane content and FCC regulations. Benjamin Svetkey of Entertainment Weekly quoted L. Brent Bozell III and Peggy Noonan associating the mass pre-emption of Ryan with the halftime show incident.

Clear Channel Communications removed talk-radio host Howard Stern from several of its large-market radio stations within a month of the incident, citing the raunchy content of Stern's show. The FCC fined Clear Channel over allegedly indecent content in the Bubba the Love Sponge radio show. As a result of the incident, some networks established regulations requiring time delays of as much as five minutes for live broadcasts such as awards shows and sporting events. In late 2004, the United States House of Representatives passed a bill to raise the maximum FCC fine penalty from said $27,500 to $500,000 per violation; the United States Senate voted to decrease it to $275,000 per incident, with a cap of $3 million per day. By June 2006, the two houses reconciled the differences in fine levels, settling for a fine of $325,000 (US) per violation in the Broadcast Decency Enforcement Act of 2005.

The incident also prompted tighter control over content by station owners and managers. Viacom, at the center of the controversy, also employed the controversial Howard Stern in its radio division (at the time called Infinity Broadcasting). The expanding control on content is said to be a contributing factor that drove Stern away from terrestrial radio and onto Sirius Satellite Radio. It has also been reported that some teen-oriented awards shows in the summer of 2004 had also been purged of most sexual and profane content that had been perceived as staples in such awards shows in the past, including Fox's Teen Choice Awards and MTV's self-created Video Music Awards. Author Frederick S. Lane stated in an interview with John Eggerton of Broadcasting & Cable magazine that the controversy surrounding the halftime show was the primary inspiration for his 2006 book The Decency Wars: The Campaign to Cleanse American Culture, which explains moral controversies in the American media over the years.

Furthermore, the annual Victoria's Secret fashion show was cancelled for that year.

The Super Bowl itself would not feature a modern act for its halftime show for the next six years, opting instead for classic rockers such as Paul McCartney, The Rolling Stones, Prince, Tom Petty and the Heartbreakers, Bruce Springsteen and the E Street Band and The Who. In fact, no women performed at the Super Bowl Halftime show at all until the Black Eyed Peas performed in 2011.

In the halftime show for Super Bowl XLVI in 2012, rapper M.I.A. pointed up her middle finger during her performance. That incident drew comparisons with the exposure of Janet Jackson's breast in the Super Bowl halftime show eight years prior. The Associated Press asserted that people learned what M.I.A. did only when reports surfaced in the media and quoted TV critic James Poniewozik: "I had no idea she even did it until NBC issued an apology for it." NBC blurred the entire screen albeit a second too late to obscure M.I.A. giving the finger.

Sports broadcasting
Sports would be greatly affected by the controversy. Three weeks later, NASCAR announced at the driver and crew chief meeting at North Carolina Speedway that they would stiffen penalties on use of improper language or gestures including larger fines, loss of points (if it occurred in a post-race interview or after the driver fell out of a race), ejection of team from the race, or lap penalties (if in-race) under the circuit's "detrimental to NASCAR" rule. Johnny Sauter was fined $10,000 and 25 points a week after the new rule took in effect for obscene language in an interview. Later in 2004, Dale Earnhardt, Jr. received a 25 point penalty and a $50,000 dollar fine when he used an obscenity after winning the 2004 EA Sports 500 at Talladega. He lost the championship lead after that incident and lost the championship by 100 point loss after the incident. In 2007, Tony Stewart received a similar penalty after using an obscenity in a post-race interview following his Brickyard 400 win. Kyle Busch in November 2010 was fined $25,000 for an obscene gesture caught on ESPN, along with an in-race two-lap penalty, as the gesture was aimed at a NASCAR official.

The NFL also came under some smaller controversies over its telecasts. The FCC received a complaint about a telecast of a playoff game between the Green Bay Packers and Minnesota Vikings from January 2005 on FOX, the complainant alleging that Minnesota player Randy Moss, who scored a touchdown, apparently made movements appearing to moon the spectators. However, the FCC denied the complaint because Moss was fully clothed at all times, and his gestures were shown for only a few seconds, thus warranting that the display was not indecent; game announcer Joe Buck also immediately condemned the act (and additionally, Moss was fined by the NFL). On January 13, 2007, during coverage on FOX of an NFL playoff game between the New Orleans Saints and Philadelphia Eagles, the camera cut to the stands, showing for four seconds the words "FUCK DA EAGLES" on a woman's shirt. That drew a backlash from the Parents Television Council, who filed complaints with the FCC.

During the live broadcast of Super Bowl XLIII on February 1, 2009, the original incident's five-year anniversary, on NBC, KVOA-TV's analog broadcast (not the high definition version of the station) over Comcast's Tucson, Arizona system was interrupted by an unknown party, when 30 seconds from Playboy Enterprises–owned adult cable television channel Shorteez was broadcast to homes just after Larry Fitzgerald scored his fourth quarter touchdown to take the Cardinals to a 23-20 lead. Afterwards, 10 seconds of an end credit segment from ClubJenna, another Playboy-owned channel, was shown. Comcast offered a $10 credit for customers who claimed to have seen the incident, and the Federal Communications Commission announced that it would investigate the cause of the incident. Josh Grossberg of E! stated: "This almost makes us nostalgic for the days of Nipplegate."

2004 presidential election
Frederick S. Lane argued in his 2006 book The Decency Wars that the Super Bowl halftime show controversy influenced the primary focus on "moral values" and "media decency" in the 2004 Democratic Party primaries.

Impacts on Jackson and Timberlake
Jackson's first album released since the Super Bowl was Damita Jo. A majority of the reviews for the album, including those by Allmusic, BBC, Entertainment Weekly, The Guardian, and The New York Times wrote about the negative backlash suffered by Jackson as a result of the incident, but gave moderate to favorable reviews to the album itself. Stephen Thomas Erlewine wrote: "'Relax, it's just sex,' ... Those words were recorded long before Jackson wound up America with her breast-baring exploits at the halftime show at the 2004 Super Bowl, but they nevertheless play like a casual response to the hysteria that engulfed the nation following her infamous 'wardrobe malfunction'." Ian Wade of BBC commented "Stupid Americans decide to sue everyone involved for the distress caused and Janet Jackson is suddenly the most despised woman on Earth." The New York Times noted "[a]fter her right breast upstaged the Super Bowl, she was criticized by the first lady, vilified by media executives and abandoned by her co-conspirator, Justin Timberlake; less excitable commentators suggested she was merely a shrewd publicity-stunt woman with a new album to promote." Despite commentary the album was a commercial failure, it sold over two million copies worldwide and received three Grammy nominations in 2005; Lynn Norment remarked: "For Janet Jackson, whose Control (1986) sold more than 10 million units and Rhythm Nation (1989) more than 12 million copies, even a 2 million-seller can be viewed by critics as a bomb." Keith Caulfield of Billboard commented, "[f]or a singles artist like Jackson, who has racked up 27 top 10 Hot 100 singles in her career, including 10 No. 1s," the fact that none of the albums singles reached the top 40 "could probably be considered a disappointment." Her following album, 20 Y.O., did not sell as well despite better critical reception. Jackson's music videos initially lost airplay on channels such as MTV and VH1.

Some observers argued that the media reaction after the incident focused disproportionately on Jackson, "represent[ing] her as a contemporary Jezebel in that her racial and gendered Otherness was often juxtaposed with the 'normalcy' of Timberlake's white masculinity. That is, she emerged in a public discourse as the primary (if not sole) instigator of the lewd act, a scheming seductress who manipulated Timberlake for her own economic gain."

Jackson appeared on CBS's Late Show with David Letterman on March 29, 2004. In April 2004, Jackson made fun of herself in a Saturday Night Live appearance, first while playing Condoleezza Rice in a skit, nervously answering a question by exposing her right breast, which was pixelated by NBC, then by viewing a mock home video from her childhood when her bathing suit top came off in a wading pool. Two NBC affiliates in Maine, owned by Gannett, pulled the plug on the show following the first segment of the original airing and later did not rebroadcast the repeat broadcast of that episode. In 2006, during an interview on The Oprah Winfrey Show, Jackson upheld her claim that the Super Bowl scandal was an accident.

Justin Timberlake won two Grammy Awards in 2004 after the Super Bowl, and put his musical career on hiatus to focus on acting. In 2006, Timberlake released an album, FutureSex/LoveSounds, which peaked at number one on the Billboard 200 and spawned three number-one singles, including "SexyBack", "My Love", and "What Goes Around... Comes Around". Timberlake also told MTV that he "probably got 10 percent of the blame", later explaining that "America's harsher on women" and "unfairly harsh on ethnic people", referring to the backlash suffered by him and Jackson. Timberlake starred in a Pepsi-Cola ad airing during Super Bowl XLII and hosted the 2008 ESPY Awards on ESPN in July 2008.