February 06, 2012 5:53pm PT by Eriq Gardner
Indecency Intrigue: M.I.A.'s Middle Finger and an Unaired Commercial at This Year's Super Bowl
Between M.I.A.'s flipping the bird and a TV commercial we didn't see thanks to a last-minute FCC decision, Super Bowl XLVI gave those who practice First Amendment law a lot to chew on this year. NBC is probably safe from another FCC indecency crackdown, but that doesn't mean this year's Super Bowl won't be remembered as an important one in the ongoing struggle to square free speech with tasteful broadcast television.
Up first is the middle finger by M.I.A., the British musician who delivered a verse and a whole lot more during Madonna's performance on Sunday.
The surprise gesture caught NBC sleeping, as an attempt to censor it came too late. The episode also evoked memories from the Super Bowl halftime performance eight years ago of Janet Jackson, whose "wardrobe malfunction" set off a lot of hemming and hawing about indecency standards on television.
This time, however, NBC is unlikely to face any fines over M.I.A.'s act, according to various broadcast lawyers we've consulted.
These close observers of the FCC note that the agency has never made any ruling on whether an extended middle finger rises to the level of being "indecent," and at a time when the agency's enforcement is being challenged for being "arbitrary and capricious," many have strong doubts whether the FCC would wish to set new law.
Right now, the U.S. Supreme Court is in the midst of considering the FCC's constitutional allowances to police indecency, and until that happens, the rulebook is in flux as the 2nd Circuit has already struck down some of the agency's policies on naughty words on broadcast television.
If the agency did make an action, says Hary Cole, a broadcast lawyer at Fletcher, Heald & Hildreth, it would probably be for possible use of the word, "shit," by M.I.A.
During her performance, she seemed to halt herself, however, when delivering the song line, "I don't give a sh--."
Still, despite NBC's apologies, critics are lambasting the network for not seeing something like this coming. Here is a statement given to us by Parents Television Council President Tim Winter:
"The mechanism NBC had in place to catch this type of material completely failed, and the network cannot say it was caught off guard. It has been eight years since the Janet Jackson striptease, and both NBC and the NFL knew full well what might happen. They chose a lineup full of performers who have based their careers on shock, profanity and titillation. Instead of preventing indecent material, they enabled it. M.I.A. used a middle finger shamelessly to bring controversial attention to herself, while effectively telling an audience filled with children, ‘F– you.’"
The uproar over the M.I.A. gesture might be commanding the headlines, but one should not ignore a very important decision the FCC made on Friday.
The agency decided that during the Super Bowl, a Chicago affiliate didn't have to air an anti-abortion advertisement showing an aborted fetus. The challenge came from a man named Randall Terry, who says he's a candidate for U.S. president and that the station was obligated to sell him advertising time under rules that prohibit networks from censoring content from political candidates, even if the content is deemed to be indecent or obscene.
"This is a big deal for two reasons," says Cole. "The FCC has made moderately new law on what to look for to see if a candidate is really running for office as well as standards for making equal opportunities of ad time for political opponents."
In this case, the FCC decided that Terry wasn't a legally qualified candidate for office, implying that he was using the excuse of candidacy to get his message past the censors. Among Terry's activity examined by the agency to determine this was whether he had made campaign appearances, distributed literature, and conducted fundraising. The agency also noted that the Democratic National Committee disavowed his candidacy in a letter.
But even if Terry was a candidate, the FCC also said that he'd have no right to demand his commercial run during the Super Bowl. That's because under current law, stations must give opponents equal opportunities to get their own message out, and since the Super Bowl is a one-time unique annual event, the TV station couldn't fulfill its equal-time mandate in time for the election.
In sum, NBC is getting hit today from those who think the network should have done more to prevent viewers from seeing the middle finger. But the big action on what's fair and free on public airwaves is likely to happen in the next few months, starting with the U.S. Supreme Court's coming decision but also possibly any appeal of the Terry case.