IT WAS not that noticeable amid all the razzmatazz. Many viewers missed it. But on February 5th, during the half-time show of the Super Bowl, the apogee of both the sporting and broadcasting year, MIA, a British pop star, unexpectedly sang “I don’t give a shit” and raised a middle finger to the cameras. NBC, the network airing the show, swiftly apologised for her “inappropriate gesture”. But that, said the Parents Television Council (PTC), which campaigns for more wholesome programming, was an inadequate response to what its members felt was a “slap in the face” to families across America.
Whether any Supreme Court justices were watching, or considered themselves slapped, is unknown. As it happens, however, they are currently mulling over just this sort of incident. Last month they heard arguments in cases involving two other broadcast networks, Fox and ABC, which are challenging the Federal Communications Commission’s restrictions on indecency. The broadcasters think their output should be free from any form of censorship, just as cable television and the internet are. In particular, they object to the FCC’s rules about “fleeting expletives” (isolated, and in many cases, unscripted swearing) and brief glimpses of titillating body parts, which are subject to heavy fines. Those rules, in turn, were adopted in part thanks to the uproar prompted by the half-time show of a previous Super Bowl, in which the breast of another wayward pop star was momentarily bared, supposedly due to a “wardrobe malfunction”.
The FCC has long barred profanity and nudity during waking hours, although it used to take a laxer attitude towards isolated incidents. The Supreme Court upheld its rules in 1978, despite their impingement on free speech, on the basis of a law banning smut on the radio. But the broadcasters complain that the FCC’s drive for decency is inconsistent, unnecessary and increasingly quixotic. Why, they ask, should swearing be permissible in some circumstances (broadcasts of “Saving Private Ryan”, a gritty war film) but not in others (awards shows populated by foul-mouthed celebrities)? Is it really necessary to protect the public from swear words, when viewers can so easily vote with their remotes? Above all, while the court allowed the airwaves to be policed in 1978 because they were a scarce, publicly owned resource, does that still make sense in an era of cable, satellite and YouTube? After all, some 85% of households in America now subscribe to some sort of pay television, and almost 70% have broadband and thus face constant exposure to cursing and smut.
Judging by their questions to the broadcasters’ lawyers, however, not all the justices are convinced. All the government is asking for, said John Roberts, the chief justice, “is a few channels where you…are not going to hear the s-word, the f-word”. Moreover, as the PTC points out, in spite of the proliferation of viewing options, broadcasters remain pre-eminent. Of the 100 most popular shows last year, 89 were on broadcast networks, not cable. Some 114m people watched this year’s half-time show, making it—swearing, middle finger and all—the most widely seen television programme in American history.