Rihanna’s Halftime Performance Was Nothing to Complain About (to the FCC, at least)

The leadup to the Super Bowl LVII Halftime Show was filled with speculation about who would be the special guest that Rihanna teased. Would it be Adele, who said she was “going just for Rihanna”? Eminem? Someone else? Of course, we now know that Rihanna “brought” her unborn child, announcing her pregnancy to the world from a platform suspended above State Farm Stadium in Arizona. But it wasn’t just Rihanna’s baby bump that viewers were talking about after her halftime performance.

Risqué – But Was It Indecent?

While many fans found the performance as a whole enthralling, some others have voiced disdain over one moment of the show, deeming some of Rihanna’s gestures inappropriate for broadcast television.

Rihanna’s performance appears to be the latest in a long line of controversial Super Bowl halftime show moments, going back to the original “wardrobe malfunction” during Janet Jackson and Justin Timberlake’s performance in 2004. Last year’s hip hop themed show reportedly prompted 33 complaints to the Federal Communications Commission (FCC), while the 2020 halftime show featuring Jennifer Lopez and Shakira drew 1,300 complaints.

But even if Rihanna’s performance similarly attracts objections over its content, such complaints would be unlikely to result in any action by the Commission.

For the last several years now, the FCC has been almost entirely dormant on the indecency front. In 2013, the FCC issued a Public Notice seeking comment on whether it should make changes to its current broadcast indecency policies. The Commission, however, has not taken further action in that proceeding. In 2018, the FCC received at least 162 complaints about news coverage of then-President Trump’s use of an obscenity to reference certain countries, but did not take any enforcement action. And despite the large volume of complaints about the performance by J. Lo and Shakira, the FCC did not take any action.

Indeed, the only significant indecency development that we have seen from the FCC in recent years came in 2015, when the Commission fined a Roanoke, Virginia TV station for allegedly airing a sexually explicit clip of an adult film website during a news broadcast.

The FCC Should Continue to Swallow Its Whistle on Indecency

Ask any Philadelphia fan about the fourth quarter of Sunday’s game against Kansas City, and they will tell you that whether or not Eagles cornerback James Bradberry actually “held” Chiefs wide receiver JuJu Smith-Schuster, the referee should have refrained from making the call in that situation.

The FCC should adopt a similar approach and continue to exercise restraint by not interfering with the freedom of expression in the name of enforcing indecency regulations.

As a quick recap, under federal law, it is a crime to utter “any obscene, indecent, or profane language by means of radio communication.” 18 U.S.C. § 1464. When determining whether broadcast material is indecent, the Commission must determine: (1) that the material alleged to be indecent falls within the subject matter scope of the definition of indecency (by describing or depicting sexual or excretory organs or activities); and (2) that the broadcast is patently offensive as measured by contemporary community standards for the broadcast medium.

Beginning in 2003, a number of FCC indecency cases focused on various expletives and allegedly inappropriate images on television, notably Bono’s remark during the Golden Globes that “this is really, really f[***]ing brilliant,” Janet Jackson’s wardrobe malfunction during the 2004 Super Bowl, brief nudity on NYPD Blue, the use of the “s-word” on the Billboard Music Awards, and even language contained in a PBS documentary about the evolution of blues music.

While the FCC previously embraced a light touch with respect to indecency enforcement, fines for this programming evidenced a policy shift – one which for the first time seemingly ignored context or the fleeting nature of the language or image used – and accordingly chilled speech. In one notable example, fearing huge fines, broadcast stations suspended coverage of the memorial service for Pat Tillman, the Arizona Cardinals player who was killed in action in 2004 while serving in Afghanistan (and who was remembered during this year’s Super Bowl coin toss), when his eulogists included certain curse words in their tributes.

The cases eventually made their way to the United States Supreme Court. The Court took a narrow approach to its review, leaving both the FCC and broadcasters with little clarity. While the Court set aside the Commission orders citing Fox and ABC for indecency violations with respect to fleeting imagery or utterances (finding that the agency failed to give the networks prior, fair notice that fleeting expletives and momentary nudity could be found actionably indecent), it declined to overturn its 1978 Pacifica decision or otherwise revisit the legal underpinning of broadcast content regulation. The Court held the FCC was free to modify its indecency policy, provided it gave broadcasters fair warning.

The FCC’s lack of indecency enforcement in recent years comes, of course, as a relief for broadcasters who through much of the 2000s were forced to defend what seemed like every even remotely questionable utterance or depiction. As has been argued before the FCC and the courts, what is or is not found to be indecent content may largely be dependent on the sensibilities of whoever is sitting at the head of the agency.

As it seemingly has in recent years, the FCC should harken back to its light touch when it comes to enforcement of its indecency rules.