It was the Breast of Times, It was the Worst of

Fines:

Janet Jackson, The FCC and Indecency

Interviewer: Emily Broeckaert

Interviewee: Robert Ratcliffe

Instructor: Alex Haight

Date of Submission: February 13, 2013

Table of Contents

Interviewee Release Form...... P.2

Statement of Purpose...... P.3

Biography...... P.4

Historical Contextualization...... P.6

Interview Transcription...... P.22

Interview Analysis...... P.45

Appendix 1...... P.51

Appendix 2...... P.52

Works Consulted...... P.56

Broeckaert 3

Statement of Purpose

The purpose of this project is to explore the history of obscenity and indecency laws in the United States from the 1800’s to the present to better understand the reaction from the

Federal Communications Commission (FCC) to the Janet Jackson Superbowl Halftime Show

Incident in 2004. This media event prompted numerous complaints to the FCC against CBS for allowing indecent material to air on a national broadcast in prime time. An interview with the

FCC’s Deputy Chief of the Media Bureau, Robert Ratcliffe provides an insiders perspective on the events following the broadcast and what contributed to the FCC’s eventual loss in court.

Broeckaert 4 Biography

Robert H. Ratcliffe was born in Jackson, Mississippi in1945. He attended the Landon

School and Trinity College before joining the Army. In the Army he served as a U.S. Army,

Medical Service Corps in the administrative support for the Medical Corps, a Company

Commander, US Army Hospital in Bremerhaven, Germany, and finally as the Command

Medical Historian for the US Army in Long Binh, Vietnam. He left active duty as a Captain after three years of service. When he got out of the Army he attended the Fletcher School of Law and

Diplomacy at Tufts/Harvard University (A.M.) and later Boston University School of Law

(J.D.). After completing Law School, Robert worked as a Law Clerk at Herrick, Smith, Donald,

Farley and Ketchum Law Firm in Boston. He then joined the FCC where he worked in various positions including as the Division Chief in the original Cable Television Bureau, until it merged with the Broadcast Bureau to form the Mass Media Bureau around 1981. Later on he worked as the

Broeckaert 5

Deputy Bureau Chief of the Mass Media Bureau, the Media Advisor in Chairman Sikes’ Office and various positions including Deputy Bureau Chief of the Media Bureau (successor to the

Mass Media Bureau), Deputy Chief of the Enforcement Bureau, Acting Chief of the Media

Bureau during the digital television transition; and, currently, Deputy Chief, Media Bureau.

While Working in for the FCC Robert was involved in many notorious FCC events, notably the

$2.5 million dollar fines issued to Howard Stern, and as head of the Media Bureau and worked with the Enforcement Bureau during the case FCC v. CBS, better known as the Janet Jackson

Halftime Show Incident. After all of his years of service in the FCC he received the FCC

Lifetime Achievement Award in 2012.

Robert has had an interest in communications since he was a teenager. He became amateur radio operator at 16. He married in 1971 and has two sons. He has lived in various locations in his life including Seattle, WA; San Antonio, TX; Arlington, VA; Ankara, Turkey;

Hyattsville, MD; Charlottesville, VA; Bethesda, MD; Bremerhaven, Germany; Long Binh,

Vietnam; Watertown (Boston), MA; and Adelphi, MD. He currently lives in Bethesda Maryland.

Broeckaert 6

Historical Contextualization:

From Obscenity to Indecency: A History From the 1800’s to 2012

Phyllis Schlafly wrote on February 11, 2004, about the Super Bowl XXXVIII Halftime show, and that the event proved why, “The radical Muslims who criticize our culture as degraded and demoralizing now have new proof for their charges.” (Schlafly 2.) Within nine-sixteenths of a second during Super Bowl XXXVIII, an incident occurred and was broadcasted on television, and created a national uproar. The Janet Jackson Superbowl Incident became one of the biggest events in television history. The Federal Communication Commission (FCC) had not dealt with an event as controversial since George Carlin uttered his “Seven Dirty Words You Can Never

Say On Television” in 1972. Again the question was raised of what role the FCC should play in regulating indecency. Even before the FCC1 was established, what was considered obscene material caused debates in America, dating back to when the United States banned the erotic novel Fanny Hill2 in 1821. The legality of the FCC’s regulation of the entertainment industry had been challenged before, but not to the extent of the Super Bowl incident. To understand the court battles of FCC v. CBS3 one must first examine the early stages of Americas reaction to obscenity in literature, moving then to the evolution of radio with George Carlin and indecency, as well as gain a firsthand perspective from someone who was a part of FCC v. CBS and how indecent material should be regulated in todays world.

Broeckaert 7 Defined as material that deals with sexuality in a way that government officials want to censor it as it offends the morals of that time, obscenity has existed since the Roman Empire established the Office of Censor in 443 BC. As a young country America experienced the issue

1 The Federal Communications Commission was established on June 19, 1934 2 Novel by John Cleland first published in England in 1748, also goes by the other title of The Memoirs of a Woman of Pleasure 3 FCC v. CBS was the name of the court case about the Janet Jackson Super Bowl Incident

of obscenity in the 1800s, only a few years after the Bills of Rights was enacted4 with the First

Amendment, granting the Freedom of the Press and Speech. The earliest obscenity trial in the

United States was the case Commonwealth v. Sharpless in 1815. The case was about an obscene painting of a man and a woman. During the trial it was admitted that, “The court, by referring to other laws not specifically related to this case, had noted that the law did not allow lascivious, lewd, or obscene publications--the types of publications that are widely distributed today.”

(Edwards, 1.) Sharpless tried to defend himself by stating that the painting was located in his home and not a public place. He was ultimately found guilty, but appealed as there was no statute in Pennsylvania against obscenity at the time. The judgement was affirmed, since the prosecution of obscenity was not barred. This is an example of moral legislation being based off of Biblical standards during the time. Obscene paintings or other images were not often found offensive, but the development of obscenity in literature soon received attention. The first well known conflict in America with obscene literature was the banned erotic novel Fanny Hill in

18215. The novel was about the life of a prostitute in London, and the writing had no restraints when describing sexual scenes. This was the first obscenity case involving a book in the United

States. The novel existed years before, but in censored versions. Not until 1821, when Peter

Broeckaert 8 Holmes published the novel in its original script, did people begin to react negatively. Chief

Justice Isaac Parker declared that the publisher was a “‘scandalous and evil disposed person’ who had contrived to ‘debauch and corrupt’ the citizens of the commonwealth” (Karolidies,

285). Though obscenity was usually portrayed in images and sometimes in news, the United

States never had to deal with obscene literature, making it the first court case about it. As

4 Bill of Rights was enacted on December 15, 1791 5 Though many books also were banned at this time and following, Fanny Hill was original banned novel for obscenity rather than religious or political issues in other novels.

literature was one of the only few forms of entertainment back in the 1800s to the early 1900s, anything obscene could cause just as much controversy as obscene radio or television.

The government did not only attempt to get rid of obscenity in literature. The Federal

Comstock Law6 was passed which made mail containing obscene letters, pictures, or contraceptive devices illegal. The penalties for breaking this law were severe, as preventing obscenity became a more popular crusade in America and anyone who tried mailing anything obscene, “Shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.” (Thomas, 1.) The law led to many arrests as the

Comstock’s main crusade was to stop the availability of contraceptives as they were viewed as lewd, immoral, and promoting promiscuity. Over the years, many cases were brought against literature considered obscene. One of these cases was Kaplan v. California in 1873. In Kaplan, a owner of an adult bookstore was arrested for selling obscene novels, which violated California’s

Obscenity Statute. Kaplan was one of the first cases dealing with obscene literature.

Broeckaert 9 The first landmark case addressing obscenity was Roth v. United States in 1957, which defined what type of speech is protected or unprotected by the First Amendment. This case ended with being determined as obscene and therefore not protected by the First Amendment and thus upheld the convictions made against Roth for publishing and mailing obscene material. Roth was followed by Miller v. California in 1973, where Marvin Miller, owner of one of the largest mail order businesses in pornography, tried mailing sexually explicit illustrated books, labeled

‘adult’ material. The court determined that this material was not protected by the First

6 Created by Anthony Comstock on March 3, 1873

Amendment. This case was also a landmark Supreme Court case that changed the precedence involving what constitutes unprotected obscenity for First Amendment purposes.7 The case created the Miller test8, which is the Supreme Court’s test for determining whether a speech or expression can be called obscene, and if it passes the test, it is not protected by the First

Amendment. Obscenity was determined to be unprotected by the First Amendment because obscene material met the standards of pornography, which is determined as obscene material, and is unprotected by the First Amendment because it meets all three requirements of the Miller test. All of these cases dealt with printed obscenity. The development of other forms of entertainment, such as radio and television, brought regulation of obscene material to a new level with electronic broadcasts.

Broeckaert 10 Obscenity’s legal definition is associated with hardcore pornography in the later 1900s, and is not protected by the First Amendment. Another legal term, however, soon branched off of obscenity9, the term indecency. Where obscenity is defined as “what is highly offensive, not to what is harmful.” (Leone, 199), indecency’s legal term is defined by the FCC as, “Language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual, or excretory activities or organs.”

(Leone, 173.) Twenty-six years before the FCC v. CBS became one of the biggest cases in

7 The outcome of the case ruled that obscenity was not protected by the First Amendment. It tests for utterly unredeemable social values. 8 The basic guidelines for the trier of fact must be: 1: whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. 2: whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3: whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 9 Is also a synonym to.

United States history, there was a case that was the benchmark for broadcasting indecency. The case involved the question of whether a specific broadcast was considered indecent, but not obscene.

When radio became available to more people, over the decades, entertainment stations began to take over the radio waves10. Many of these stations were constantly seeking new and outrageous material. On May 27, 1972, George Carlin11 performed a show at the Santa Monica

Civic Auditorium, recording his Class Clown12 album. On this album, one of Carlin’s segments was a seven minute comedy routine called, “The Seven Dirty Words You Can Never Say On

Television.” Carlin’s routine was influenced by Lenny Bruce, who, in 1962, became blacklisted13

Broeckaert 11 from performing in U.S. clubs because of a routine that contained profanity14. As a result of

Bruce’s influence, Carlin’s routine was, “The message was directed at not just the corporate control of the entertainment industry, but also the sterile society that refused to rethink its own attitudes and values toward language.” (Bella, 1.) Carlin didn’t fear the consequences and proclaimed in his monologue, “And words, you know the seven don't you? Shit, Piss, Fuck,

C$*%, Cocksucker, Motherfucker, and Tits, huh? Those are the heavy seven. Those are the ones that will infect your soul, curve your spine and keep the country from winning the war.”

(Erenkrantz, 1.) The first time Carlin experienced a negative reaction to his routine, was in July of 1972 at the Milwaukee Summerfest where he was arrested for obscenity charges. This was the

10 Though the radio had existed before then, the first original radio broadcast occurred on December 24, 1906, by Reginald Fessenden 11 Lived from 1937-2008 12 Released on September 29, 1972 13 A person who is denied a particular privilege 14 Carlin attended a performance of Bruce’s in Chicago in 1962 where Bruce was arrested after the show for obscenity charges. He was accused of at least saying two profane words (fuck and tits).

first of several arrests Carlin received after performing the routine. The major event involving

Carlin’s routine occurred on the afternoon of October 30, 1973. Paul Gorman, the radio host of

WBAI’s “Lunch Pail” played a modified version of “Seven Dirty Words” that was renamed

“Filthy Words”15. Gorman warned viewers that he was going to play Carlin’s bit and they should change the channel as it contained language that could be deemed offensive. This radio bit was where the real reaction began.

John Douglas, a CBS executive and member of a group called Morality in Media, was driving with his fifteen year old son when he heard Gorman’s warning about the offensive monologue about to be played. He stayed on the channel after the warning and listened to the whole broadcast with his son in the car. About a month later, Douglas filed complaint with the

Broeckaert 12 FCC, referring to the monologue as garbage and demanded the FCC do something. Douglas later admitted and defended what he did, stating he did not hate nor fully blame Carlin, “I didn’t turn him in. I was turning in WBAI.” (Bella, 2.) The broadcast company that owned WBAI, the

Pacifica Foundation, tried to defend the broadcast by calling Carlin, “A significant social satirist of American manners and language in the tradition of Mark Twain and Mort Sahl,” (Bella, 2).

Pacifica’s plea did not work and the FCC ruled against Pacifica. However, they did not severely punish Pacifica, only giving them a warning that if more complaints follow, or more broadcasts occurred, the FCC could impose more severe penalties. The court battles of FCC v. Pacifica began.16

Pacifica initially won an appeal at the D.C. circuit court to turn over the FCC’s original decision. The court said that the FCC did not have the right to regulate the WBAI broadcasts.

15 This came from Carlin’s other album, Operation: Foole 16 Argued on April 18-19, 1978, decision made on July 3, 1978

The cases eventually reached the Supreme Court in 1978. A Federal Communications Law

Journal by Jerome A. Barron, states that:

Broeckaert 13 The FCC gave a separate definition to the word 'indecent” in the statute cited in

Pacifica, which involved the broadcast of George Carlin’s “Filthy Words” monologue.

Carlin was satirizing an FCC policy launched in 1970, which stated that gratuitous and

repeated use of two dirty words-I leave it to you to surmise the words-constitutes a

violation of the statute. The FCC defined the word “indecency” in Pacifica as follows:

“language that describes, in terms patently offensive as measured by contemporary

community standards for the broadcast medium, sexual or excretory activities and organs,

at times of the day when there is a reasonable risk that children may be in the audience.

The FCC ruled that Carlin’s broadcast violated that standard. (Barron, 1.)

In the case, Pacifica argued that the FCC erroneously interpreted indecency as a synonym for obscenity, and the broadcast therefore did not violate the Miller v. California obscenity definition17 as enforcement was not authorized by that statute. The final result was that the

Supreme Court upheld the FCC actions and, by a 5 to 4 ruling, declared that Carlins monologue

17 See footnote 7 for definition.

on the radio was ‘indecent but not obscene’ and subject to restriction. The Supreme Court also upheld the FCC’s authority to regulate indecent programming broadcasted between 6a.m. and

10p.m., because it occurred at an hour where children could be expected to be apart of the viewing audience, and that the FCC could fine stations for airing indecent materials.

Journalism Professor Richard Labunski commented on how little protection broadcasters have under the First Amendment, “In Federal Communications Commission v. Pacifica

Foundation, the Court reiterated what broadcasters had long understood: “We have long

Broeckaert 14 recognized that each medium of expression presents special First Amendment problems... And all forms of communication, it is broadcasting that has received the most limited First

Amendment protection.” (Labunski, 15.) The Pacifica case was controversial decision, however under George W. Bush’s administration the FCC stepped up on enforcement of indecent speech.

Culminating in FCC v. CBS. FCC v. Pacifica laid the groundwork for regulation of indecent material, but the most important case of indecency occurred on television in 2004 for about half a second, half a second that caused public outrage and a court battle still continuing today.

Janet Jackson was originally known as the youngest member of the Jackson family, with famous pop icon big brother, Michael Jackson who had also performed at Super Bowl Halftime

Show18. As Jackson got older, her own career began to grow. She began to take on a more sexual, edgy, and racy persona. On February 1, 2004, America tuned in to watch the New

England Patriots play the Carolina Panthers in Super Bowl XXXVIII at Reliant Stadium in

Houston, Texas. When the teams exited the field for halftime, the “entertainment” began. The show was produced by MTV, a network already known as a rebellious, modern, young adult

18 Michael Jackson performed in 1993, his performance increased the TV ratings by a significant amount, and was claimed to be one of the most watched events in television history, only adding onto Janet Jackson’s pressure to be memorable.

network that was not afraid to push television boundaries. No one expected the show to be special as Jackson’s career seemed to be fading before the incident. Before Jackson’s shocking final number, the material throughout the halftime show was very sexual and suggestive. The show had performances by P. Diddy, Nelly, Kid Rock, and Justin Timberlake. Both P. Diddy and

Nelly performed songs that contained occasional references to sexual activities along with

Nelly’s emphasis on certain lyrics by making crotch grabbing gestures. From start to finish, the show

Broeckaert 15 consisted of songs referring to sex and body parts. Following P. Diddy and Nelly’s performance came Kid Rock, who wore a poncho, that was made from a slit of the American flag. Finally

Jackson reappeared and sang “Rhythm Nation” followed by an ending duet with Justin

Timberlake. The duo performed Timberlake’s hit “Rock Your Body” which consisted of obvious sexual references with the duo grabbing and rubbing against each other to simulate sexual activity. On the final lyric Timberlake sang to Jackson, “Gonna have you naked by the end of this song,” and then continued to pull off a portion of Jacksons bustier, exposing her breast to the television audience for nine-sixteenths of a second before Jackson realized what happened and covered herself up. The damage was done and all across America, the football game was forgotten, as CBS just aired nudity. 19

The reaction across America spread like a wildfire. The debate of whether MTV,

Timberlake, and Jackson planned the event as a publicity stunt was thrown around, that only one portion of Jacksons costume was supposed to come off, not revealing her breast. Frank Rich of the New York Times praised Jackson for her bravery of defying the broadcast regulations,

“Almost no one has come to the defense of Janet Jackson. I do so with a full heart. By baring a

19 The Patriots defeated the Panthers 32-29

single breast in a slam-dunk publicity stunt of two-seconds' duration, this singer also exposed just how many boobs we have in this country. We owe her thanks for a genuine public service.”

(Rich, 1.) Blue Fusion, a new youth marketing consultancy, asked the questions to the youths of

America, “In response to the question "Do you think CBS is overreacting about the Justin/Janet situation?" 74 percent of youths said "Yes," and 26 percent said "No."In response to

Broeckaert 16 the question, "Do you think the media would have reacted the same to any other artist?" 61 percent of youths said "Yes", 29 percent said "No", and 10 percent said "Don't know."

(Torossian, 1.) These results helped show that the only people mad about the incident were older generation of America, particularly, the Parents Television Council (PTC)20. Brent Bozell III, founder of the PTC, condemned MTV for their actions with the halftime show, “On Sunday night, grandparents, parents, and children were huddled around the set for the Big Game, an obvious time slot for "family hour" programming. Instead, Grandpa and eight-year-old Johnny are trying to process why they have to be infected with this communicable disease, this vile programming that should be known as the MTV virus.” (Bozell, 2.) The PTC’s reactions to the event cumulated into a large amount of complaints to the FCC about CBS.

Before the event, the PTC filed few complaints to the FCC for indecent broadcasting that sometimes occurred on television and radio. After the event, the PTC campaigns overwhelmingly increased the amount of complaints filed before the FCC. Complainants increased from about 250,000 in 2003 to almost 1,500,000 in 2004. FCC fines increased as well from almost $500,000 in 2003 to close to $8,000,000 in 2004. The NFL apologized and assured that MTV would never produce a halftime show again, Jackson apologized that the costume reveal went awry, Timberlake sent his apology out and coined the term ‘wardrobe malfunction.'

20 Founded in 1995

The FCC declared the broadcast indecent and CBS was fined a record of $550,000 by the FCC.

CBS soon took on the FCC in court in CBS v. FCC.

Broeckaert 17 On November 24, 2004, Viacom21 paid $3.5 million to settle indecency complaints, but challenged the FCC fine related to the Janet Jackson incident. This failed, however, as the FCC confirmed that the halftime show was indecent in March of 2006. CBS then paid so they could appeal it in Federal Court. On September 11, 2007, CBS and the FCC presented their arguments to a three-judge panel of the Third Circuit Federal Court of Appeals in Philadelphia. CBS argued that: “the incident was regrettable, but virtually impossible to have anticipated or prevented given that it had never happened before, although the network said it has taken "extraordinary" steps to make sure it never happens again.” (Eggerton, 1.) The FCC argued, “That it was just doing its job in the face of voluminous complaints and that it is on solid legal ground.”

(Eggerton, 1.) CBS tried to defend themselves by saying the event was arbitrary and was not planned. CBS also defended themselves by pointing out that the FCC had the right to examine alleged indecent broadcasts in order to determine whether it should be censured and until 2004 the FCC limited this exception to fleeting expletives but ever stated it applied to fleeting images as well, “Three decades of FCC regulation showed restrained enforcement policy applied to images and words alike, FCC failed to acknowledge that it changed its policy on fleeting material, and FCC did not supply reasonable explanation from its departure from prior

21 Mass Media Company that owned CBS (2000-2005) and MTV. In 2005 the company split into two publicly traded companies because of issues with MTV after they were banned from ever producing anymore Halftime shows. The CBS Corporation was founded in 2006 as CBS owner

Broeckaert 18 policy. 5 U.S.C.A. § 706(2)(A)22; 18 U.S.C.A. § 146423.” (CBS v. FCC Pt. 1, 2) In a simpler version, “There was also said to be a "fair amount of discussion" of whether the FCC followed the administrative procedures act or whether its decision had been arbitrary and capricious. If the court finds that the FCC did not sufficiently explain a change in enforcement policy on fleeting images--as the court in the Fox case found in terms of fleeting profanities--it could remand the decision back, but that would almost certainly mean wiping out the fine against CBS as well.”

(Eggerton, 3.)24. The ultimate ruling on July 21, 2008, was in CBS’s favor, as the court held that the FCC’s imposition of monetary forfeiture was arbitrary and capricious, and threw out the

$550,000 indecency fine. However, on May 4, 2009, The Supreme Court remanded that the case go back into consideration after the decision of FCC v. Fox25 on April 28, 2009, where the FCC had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on

"fleeting expletives" from the airwaves. CBS and the FCC met again at the United States

22 To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) Compel agency action unlawfully withheld or unreasonably delayed; and (2) Hold unlawful and set aside agency action, findings, and conclusions found to be— (A) Arbitrary, capricious, an abuse of discretion, or otherwise not according to law; (B) Contrary to constitutional right, power, privilege, or immunity; (C) More than statutory jurisdiction, authority, or limitations, or short of statutory right; (D) Without observance of procedure required by law; (E) Unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) Unwarranted by the facts if the facts are subject to trial de novo by the reviewing court 23 Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. 24 The FCC was also had a case with FOX about profanity said during award show speeches by Cher and Nicole Richie in 2002 and 2003. In 2004, the FCC prohibited "single uses of vulgar words" under any circumstances, including previous instances where it gave leeway for "fleeting" expletives that networks unknowingly allowed to enter the airwaves. The Supreme Court decided to hear the case in 2008 and in a 5-4 decision on its long standing policy and new ban on expletive on broadcasts. 25 See footnote 23

Broeckaert 19 Court of Appeals, Third Circuit for the argument on CBS remand on February 23, 2010. In this case there was much reference to FCC v. Fox and FCC v. Pacifica as contributors for a new possible outcome with the halftime incident. The major difference was that Fox and Pacifica cases were indecent utterances, while the CBS broadcast was about indecent imagery, “The

FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.” (FCC v. CBS Pt. 2, 14) On November 2, 2011, in a

2-1 decision, the Third Circuit ruled that the earlier decision was correct and CBS did not have to pay the FCC fine. Finally, on June 29, 2012, the Supreme Court denied an FCC petition for a writ of certiorari, letting the Third Circuit ruling stand. In denying the writ, Chief Justice John

Robert stated, "It is now clear that the brevity of an indecent broadcast — be it word or image — cannot immunize it from FCC censure... Any future 'wardrobe malfunctions' will not be protected on the ground relied on by the court below." In addition, Roberts said that calling it a

"wardrobe malfunction" when Justin Timberlake ripped away part of Jackson's bustier "strained the credulity of the public."26 (USA TODAY, 1.) Since this appeal was denied, no further cases about FCC v. CBS have occurred and “Nipplegate”27 was finally put to rest.

Legal experts have interpreted CBS v. FCC very differently as to whether CBS should be held responsible for the halftime incident. Lawyer Rose Acoraci argues that, “CBS was not held liable under respondent superior doctrine of the performers actions because the performers were independent contractors rather than employees. The First Amendment precluded CBS from being strictly liable for its contractors’ actions based on its duties as a broadcast licensee. Additionally,

Broeckaert 20

26 Chief Justice since 2005 to present, having been nominated by George W. Bush 27 Another name for the Janet Jackson Super Bowl Halftime incident

the court held that further clarification was needed from the FCC to establish if CBS is directly liable for a penalty under 47 U.S.C.§ 503(b)(1)(B)28 for failing to take adequate precautionary measures to prevent potential indecency during the Halftime Show. Thus, the court vacated orders of the FCC and remanded for further proceedings consistent with its opinion.” (Acoraci,

1.) Acoraci’s has interpreted the case to be rightfully in favor of CBS, because CBS could not have predicted the event would occur, nor that the FCC had a real right to fine CBS. Jerome A.

Barron, the Harold H. Greene Professor of Law at George Washington University Law School argues the issue of the FCC’s fleeting expletives policy, and how that was the failure to their case against CBS, “If we are trying to determine the future path of the FCC’s policy on fleeting expletives, I think it is important to stress the significance of the fact that the Court has agreed to review the Janet Jackson case. An important aspect of the Janet Jackson case is that it raised the question of what exactly the FCC’s fleeting material policy is. Was the FCC’s fleeting expletive policy limited to utterances? Or did it extend as well to fleeting images? The FCC argued that its past policy of exempting fleeting expletives did not apply to fleeting images. The Third Circuit engaged in an analysis of the FCC rulings on this issue and determined that for the past thirty years, the FCC’s fleeting material policy had made no distinction between fleeting utterances and fleeting images.” (Barron, 7.) Barron later goes on to state that the Third Circuit’s decision was that the FCC had exempted fleeting or isolated material, including fleeting images, from indecency regulation. The conclusion of these two legal experts is that both agree that the FCC

Broeckaert 21

28 willfully or repeatedly failed to comply with any of the provisions of this chapter or of any rule, regulation, or order issued by the Commission under this chapter or under any treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States

did not have the right to fine CBS for indecency, but they disagree on what on what played a more significant role in the FCC’s loss.

Our country has had to strike a delicate balance between our First Amendment freedom of speech and obscenity and indecency. Without understanding previous events in American obscenity and indecency trials, one cannot see the importance of differentiating views by

Americans of what should count as freedom of speech and press, and what crosses a line. The shift towards more racy material on broadcasts over the past few years has ignited the debate of whether our country should permit more indecent material on broadcasts, and if so, how the

FCC’s role will change in regulation. FCC v. CBS was a court case with a controversial outcome, deciding that fleeting indecent images were allowed, while fleeting expletives were punishable. CBS was allowed to get away with showing a boob on national television, while Fox was fined for indecent swearing during award shows. The ban of obscene literature and mail in the 1800s, the argument of obscene and indecent material with George Carlin, and the determination that Janet Jackson’s breast should not have been fined for indecency all demonstrate that the FCC’s role in future standards of indecency will continue. By understanding the perspective of a member of the FCC during FCC v. CBS, we can learn about the FCC’s role in protecting the public from indecent broadcasts.

Broeckaert 22 Interview Transcription

Interviewee/ Narrator: Robert Ratcliffe

Interviewer: Emily Broeckaert

Location: Mr. Ratcliffe’s office, Federal Communication Commission Building

Date: December 21, 2010

Emily Broeckaert: This is Emily Broeckaert and I am interviewing Robert Ratcliffe as part of the American Century Oral History Project. The interview took place at the Federal

Communications Commission on December 21, 2012 at 2 p.m. First off Mr. Ratcliffe I would like to congratulate you on receiving the FCC’s Lifetime Achievement Award.

Robert Ratcliffe: Well thank you very much Emily I appreciate that.

EB: What can you tell me about your childhood that got you onto the path of your career?

RR: Well I think most importantly I was interested in communications. I am an amateur radio operator, I have an amateur radio license and have had since I was 16. So I had an interest in communications from a, sort of a hobbyist point of view, got me interested in communications in general and how communications serve people, and the country, television, always intriguing to most people. As a consequence I got interested and stayed interested through time in the army and when I got out of the Army I went to law school and decided to apply for a job here because

Broeckaert 23 the communications policy was interesting to me. So it’s been a persistent interest of mine and then it became a profession.

EB: And, what got you interested in becoming a lawyer?

RR: Well that’s an interesting question. I was in Vietnam at the time thinking about what I was going to do when I got out of the arm, assuming I survived the experience which luckily I did and decided that Law School was a broad kind of education that you can apply in business, or as a lawyer in regulatory or government, and there’s lots of options and I think that’s why we have more lawyers than we need in terms of (chuckles) real lawyers that got to court and have actual cases. So I decided that was, that was a worthwhile pursuit and went to law school and applied for work here.

EB: And how would you define indecency?

RR: Well, I should add before I get into any substantive questions that you know my opinions are my own and I can’t speak for the Federal Communications Commission in this regard, but I can tell you that the Federal Communications Commission defines this, and it mostly derives from court cases. The Commission had a case back in 1978 called Pacifica Radio, where a

George Carlin monologue was put on, it’s a very famous case, vernacularly known as the Seven

Dirty Words Case, in which the definition was basically laid down as to what it meant. It was

Broeckaert 24 different from obscenity, obscenity is speech that is not protected by the First Amendment so adults, no one has a right of access to obscene speech. Indecent speech is more of a less severe form of that kind of activity or speech. It’s defined as descriptions or depictions of sexual or excretory organs or activity that are patently offensive as measured by contemporary community standards for the broadcast medium. That’s how we define it. Now, there are other forms of

things short of obscenity that have all kinds of regulations about whether you can put it in a public place something that might be indecent, but for our purposes the important part of that definition besides the obvious part is the contemporary community standards for the broadcast medium. The broadcast medium part of that means that it’s a medium that reaches children and at certain times of day reaches a lot of children. As a consequence of the fact that indecent speech is the fact adults have the right to see adult-- indecent speech. It is protected by the First

Amendment, so the governments ability to restrict access to it has to be very carefully done. And so the rule that we have in this that implements the statutory provisions which prohibit indecent speech on the radio which that includes television is one that channels speech to times of the day when children are less likely to be in the audience. So after 10 p.m. and before 6 a.m., television, radio are free to air indecent speech, and not obscene speech of course we know that, but they have the right to air that speech and adults have the right to access it. So the governments compelling interest, if you would, is in protecting children, and it does that by the means least intrusive on the rights of adults in the sense of hearing that kind of speech.

Broeckaert 25 EB: Obscenity is not protected by the First Amendment while indecency is. Do you believe that

America really understands the difference between the two?

RR: I doubt that if you ask someone on the street they would be able to tell you the difference. I think it can be explained in all kinds of ways that can be fairly apparent, some of which are difficult to repeat of course, but you know there, if you tell somebody for instance, at least in

American standards for the broadcast medium, frontal nudity would be clearly indecent if not

obscene, It doesn’t. Obscenity is a very strictly very narrowly defined term. Miller v. California is the famous case, which I am sure you are familiar with.

EB: Yes

RR: And it, it requires for instance a statutory description of the explicit thing that you are saying you can’t do. And as a consequence, it’s very narrow, and we’ve had many many cases which were quite, surprising in terms of their content that we consider to be clearly indecent, and that were at least arguably obscene, mostly in cable shows because the broadcasters don’t tend to have this problem because they have a large mass audience that would be easily offended by obscene speech. So they generally don’t wander into that area. But cable operators that have specialized channels and things do and, so you can say to somebody ‘well look if I told you this vs. this‘ I could probably explain it to most people if I weren’t restrained by common decency.

(laughs)

Broeckaert 26 EB: Did you see the Super Bowl Halftime Show in 2004?

RR: You know I actually did. I was with my father, who was fairly old at the time, he died two years later, we were watching it on the very first high definition television set I had ever seen, at least in one of my family’s households, that I had bought for him, and I actually did see the

Halftime show.

EB: What was your initial reaction?

RR: My initial reaction was ‘wow did I just see what I thought I saw?‘ It was a very fast, what I think was nine-sixteenth’s of a second or something? I think that was the official time being of it.

EB: Yes it is,

RR: It’s clear, you know a lot of people argue how could that possibly been seen by anybody?

But many people did see it and did think it was what it was because of the song context, because of the action, I think you know, I noticed it. I’m not sure my father did, but he was ninety at the time so.

EB: What happened on the Monday after the Superbowl when you returned to the FCC?

Broeckaert 27 RR: Well, we began to receive a whole lot of complaints about this, and I think, I can’t remember the number anymore, but I think it was in the six hundred thousands or so or maybe even more, complaints about the same program. It was enormous stir, and the Commission was faced with a choice of how it would deal with this, and it’s a very complicated case. It’s own facts are very specific and this whole argument about fleeting indecency versus persistent ones, and it was before the Commission had announced its policy of redirecting itself away from forgiving fleeting expletives, as we argued in the case, not to integrate advantage, as I might add

(chuckles). It’s a, people, it’s pretty clear a lot of people noticed it and it’s pretty hard to tell how many people actually noticed it themselves as opposed to were told about it and showed it in slow motion by groups who are interested in such things as lobbyists, you know where they to show up and complain and get this bunch of groups that are on that side of the issue and a bunch

of groups on this side of the issue, and free speech people and more anti-indecency people. So I think there, it was and organized effort to complain to the commission.

EB: Brent Bozell III, Founder of the Parents Television Council, wrote about the halftime show, condemning everything about the show and, “On Sunday night, grandparents, parents, and children were huddled around the set for the Big Game, an obvious slot for “family hour” programming. Instead, Grandpa and eight-year-old Johnny are trying to process why they have to be infected with this communicable disease, this vile programming that should be known as the MTV virus.” What is your opinion or reaction to Bozell’s statement?

Broeckaert 28 RR: Well you know speaking for myself, I find it necessary that we balance the question of protecting children from indecent speech and protecting the right of free speech and respecting the fact that the Commission is prohibited expressly by stature from censoring speech of broadcasters. You know this is a very delicate balance and I think I would that description somewhat overstated, at least in my personal opinion, but I understand the concern. I mean I don’t, I don’t treat it lightly. I think that the Commission found ultimately that it was indecent, the courts reversed that determination but I think that it’s true the context of what was being done, the nature of the song, the lyrics of the song, and what ultimately happened, are probably not very easily explained by the ‘wardrobe malfunction’ term that they applied to it. And I think in that sense it was pandering I think, and this was certainly one of the major components of an indecency determination, so while that might be a bit much in terms of description, I think it’s probably true, judging from the number of complaints and the fact that it was the context of it was pretty darn close to the line if it wasn’t over the line, and I think it was for the time.

EB: What was your role in the ensuing enforcement action that ultimately became FCC v. CBS?

RR: Well we, we considered the factors, we had a lot of consultation about it. We talked to the

General Council about it. This was prior to, this was 2004 I believe, the incident, so I was, I was involved in it, and I know a lot about indecency because I both in charge of this bureau’s processing of those complaints when we did it, and work for the enforcement bureau, but if I recall, the incident itself actually occurred before I worked with the enforcement bureau. You

Broeckaert 29 know I didn’t have a lot of role in writing the Commissions opinion about it, in fact I remember about being consulted by the enforcement bureau’s chief, who I knew very well at the time about how we would respond to it and, and we had a lot of discussion about the fact the Golden Globes

Opinion occurred after this event and that it was difficult retroactively to have imposed

Forfeiture. So I think, you know the facts...were tough in terms of the Commissions policy at the time, and I think it was a very close call that was above my pay grade, as it were, in terms of whether or not the Commission would take action. So I didn’t have a lot to do with the opinion itself, I certainly provided information as I was asked by the chief of the enforcement bureau at the time and I told him when Golden Globes came out, I said ‘you know this is some pretty serious change in course‘ and that became the subject obviously of a lot of court opinions as to whether that was legitimate or not. And ultimately the Supreme Court you know said that it was in fact okay for us to change our policy. It’s reversal in the Second Circuit cases, in the ABC and

FOX cases, were basically due process cases, there was it didn’t have notes, and I think that you know, pretty fair argument. We tried to argue that images I think weren’t expletives and consequently that the old policy of fleeting expletives wasn’t applicable.

EB: Former FCC Chairman Michael Powell called the incident, “A classless, crass and deplorable stunt.” How strongly did you agree with him?

RR: I think it was, assuming it was intended, I think it was pretty low level. Especially for something of that particular context. I mean, this is something, as everyone has pointed out, that

Broeckaert 30 you know are many many families watch together and it’s you know you watch it for the adds as much as for the game, and for the Halftime show which is always hyped pretty much, so there’s a lot of audience there, there are a lot of people, a lot of kids, who were potentially at risk there. I mean CBS, as I recall, argued very strenuously that it had nothing to do with and it had no idea that that was going to happen, and I don’t, I tend to think that they wouldn’t have done that had they known what was going to happen. Our own case, and I speak a little bit, you know at odds with the Commission on this, was rested on that fact that they had all these rehearsals, and they controlled MTV who produced it, because it was just, you know I think, had anyone sensible thought about it, I don’t think that would’ve happened. If CBS had made the decision and been told okay this is what we’re going to do. So I think it’s probably right that it was not a good thing to have done, regardless of whether it was or wasn’t indecent legally or we had noticed or all the technical arguments about it. And it’s a bit surprising and because most television broadcasters tend to be restrained not so much by our rules as they are by their own audience and advertisers who you know say ‘hey you now made six hundred thousand people mad who might buy my toothpaste, and you know I’m not happy about that‘. So, there’s sort of natural market based reluctance on part of broadcasters and one of the things in this area I think that is really happening is that television faces a lot of competition than it used to face, and that competition is

not a subject to these rules, and as a consequence, TV to compete, tends to skate closer to the edge because you know there’s cable, and you can watch cable and see a lot of things you can’t see on broadcast television. And cable is not the subject to indecency restraint.

Broeckaert 31 EB: Mmhmm, What is your reaction to this chart? (See Appendix 1)

RR: These are complaints over based on to 2007. Well it you know I suppose it suggests complaints have gone down (chuckles). This is 2004, where’s 2007 latest year? Ah the blue is right here right?

EB: Way low,

RR: So yeah it’s very low. It is a, it’s a variable thing. I mean, it really is. I think the

Commission is probably, you know, if you remember that the standard includes this contemporary, contemporary standards for the broadcast medium. By stature that definition is a little bit changeable over time and certainly if you looked at television in the 1950’s you know, you wouldn’t see anything approaching what you see on broadcast television today. So I think it’s changing, I think people are more accustomed to the fact that some kinds of material you might see on broadcast television, whether it be more risqué than it would have been 10 years ago. I think it’s also true more broadcasters are more careful at these sorts of things. They have better technology to control it, they have delay mechanisms that are much better than they used to be instead of just making a black screen, you know they sort of instantly cut it together. It’s not easy and it cost money and they’re not really interested in having to do it, but somebody has

to make the judgment whether or not to push the button. But, I think that’s probably an explanation for just part of the reason those complaints are different.

Broeckaert 32 EB: How do you account for the massive increase in the number of complaints filed?

RR: Well, A: this doesn’t suggest there is a massive increase from where they used to be. I think, you know people are very aware and we have made it, I think rightly, much easier to communicate with the Commission and submit a complaint. We have an online complaint form, it’s easier to fill out, you don’t have to do much, you just push the button and we get it. As a consequence, I think that’s a good thing. I think it’s a good thing that we know what people think, it’s part of our job. I think in the large part that has a lot to do with the difference in complaints. If you went, say, ten years before that where you had to write a letter to the

Commission, you know that’s a lot of trouble and you got to get a stamp and an envelope, find out where to send it. Now if you just go online and go fcc.gov you can find our find our website and find the complaint forms. I think that’s true for a lot over here. The Commission has been in a process for over the last ten years of increasing every years its accessibility via the web and I think this is a good thing but it does result in more communication for us.

EB: The FCC fined CBS $550,000, were you surprised about the amount of the FCC’s fine?

RR: No, I think it’s, you know we’re talking about a bunch of affiliates and you know they have a whole bunch of affiliates and maybe two hundred or so, it’s the most popular program on TV.

So no, I don’t think that I was surprised by the amount.

Broeckaert 33 EB: CBS paid the fine so they could appeal the FCC’s decision. Did you expect the case to become as complicated and take as long as it did?

RR: Yes, I did. My experience was that all indecency cases take a very long time and are very difficult and almost always end up in court unless they’re minor, you know if a guy gets fined

$3000 or $5000, he may or may not take this to court. We may or may not be able to collect it; there are lots of practical considerations involved in enforcement of forfeiture. Both getting the

U.S. attorney to do it in a district court if they refuse to pay, and other things, time, dependencies, and statues of limitations and all kinds of things apply to these kinds of complaints. But no, I wasn’t surprised that a big forfeiture with as much publicity and as much complaint that was involved in this case, it didn’t surprise me a bit.

EB: According to CBS, they believed that: “The incident was regrettable, but virtually impossible to have anticipated or prevented given that it had never happened before, although the network has taken “extraordinary” steps to make sure it never happens again.” What is your reaction or opinion to that statement?

RR: Well I think that was one of the nubs of the debate that the Commission had. It ultimately concluded that it thought CBS was culpable. They argued that they hired people to do this and that there was no rehearsal or anything else that suggested that this was going to be what happened at the end of that Halftime show. It was already a little risqué, it was being produced

Broeckaert 34

by MTV, it was famous for, you know, being on the edge in the first place, and being cable context oriented rather than broadcast oriented, but they were owned by CBS, or partly owned, so there was a real debate about that. I think if I had to personally guess I would that CBS, at its highest level, didn’t know that that was going to happen. I think ultimately what the Commission said was you were responsible for it and if you didn’t have the arrangements in place that prevented events that’s your problem.

EB: Do you think the FCC treated the Janet Jackson incident differently because of its notoriety?

RR: Well no I don’t think so. I think it, it was similar to several other cases the Commission had that were of that level of offense at least in the Commissions view. I mean the FOX cases, and the ABC case, NYPD Blue case, now those cases were pursued not just because they were so notorious but because they were related. They were notorious because they were way past what people were expecting. As a consequence, that’s why they rose to the top of the pile. The commission would generally look at complaints and say, “Okay what’s an egregious case?

What’s a real offense? What's patently offensive?” It has to be patently offensive to meet the definition. So, presumably we were trying our best to figure out which ones were in that category and I think given the nature of the program it was in, context that it happened in, it’s not, I don’t think it was treated particularly different than any other complaint of that nature.

Broeckaert 35 EB: In your opinion, do you think after the Supreme Court correctly remanded the case for further consideration in 2009?

RR: Well this is Janet Jackson in particular to the Third Circuit. As I recall they denied certiorari, I man the first time they went they sent the case back, and, I can’t remember the exact order because I haven’t done this since 2009, so I don’t follow it quite as closely as I did when I was with the enforcement bureau and we don’t do this kind of enforcement in the media bureau anymore. But I think that the basic pace the Supreme Court is is that they disagree with the administrative procedure act arguments that were made against us which was that we couldn’t change our policy without a better explanation you know for why did something. But the

Supreme Court concluded we could and reversed those cases that relied on the APA argument.

The Janet Jackson case was somewhat different, I mean there was different facts of whether there was APA problems with the case. Ultimately I think the Supreme Court simply denied certiorari to the Commission who asked for certiorari against the Third Circuit’s ultimate vacating of its order against CBS, and so it was over at that point and I think that the Supreme Court was correct to say that the Commission is entitled to change course in terms of its policies saying now we’re going to count fleeting expletives or images, and if we do, then that’s not a basis for you asking for up court reversals; if we don’t give you notice, which is true for this case because it occurred before Golden Globes. As I recall we made an argument that images were different than expletives and we had a 1960 public notice that we relied on (laughing) and I think that was a pretty weak argument on our part and probably the court correctly concluded fleeting is fleeting

Broeckaert 36 and if this is a picture instead of words than it shouldn't-- which wasn’t clear to people that that was the case, and that consequently there was due process violation, if you don’t know you

shouldn’t do this and if you don’t know what you’re not supposed to do when you do it you can’t be held liable for it.

EB: In your opinion, what was the biggest factor that caused the FCC to lose?

RR: Well I think that in Janet Jackson in particular, I think it was because the court did not reach the fundamental constitutional issues but it did think this was an unfair --- I think it was strongly argued that the Commission simply hadn’t given notice that this was something that wasn’t within the scope of the fleeting exception under indecency and if you go all the way back to the original cases, to Pacifica, it’s pretty clear that one of the main factors of Pacifica was these hyper receptiveness of these words being used by George Carlin in his monologue, and the

Commission relied on that shock value and repetition a lot, especially in the first what ten --- nine or ten years after the George Carlin, after Pacifica decision, back then it constrained itself to just those kinds of cases. So I think we had a problem with the notice issue and that we didn’t give... they didn’t know. They had a fairly good argument that we hadn’t coped with.

EB: How was it to know that when the Supreme Court denied the FCC writ of certiorari that the case was finally over?

Broeckaert 37 RR: Well I can’t say it was sad to see it over. I think, you know it was a tough case all the time and I don’t think it was the you know not the best case the Commission was trying to make. One of the things we achieved, even though we lost ultimately, in the sense of opposing forfeiture upon CBS, was that it did get the Supreme Court to rule that the Commission was entitled to

alter its policy on indecency and to give notice and that notice was now given that the next time this happens, and I think that may had also had an effect on complaints that broadcasters were aware that the Supreme Court thinks we don’t have a duty to stick with fleeting expletive exception. And you know, if you look at all the cases, the Commission does sometimes just not act when it comes to fleeting expletives and I think this case was just one that was too much in peoples face, too obvious, to bad of context in terms of time of day and people who were watching and pretty much shocking in terms of you know you never see bare breasted women on commercial broadcast television that’s just the way it is. So this was a unique event nearly, with some PBS exceptions I’d have to say. But, you know, the context was just wrong, in terms of offensiveness. It was offensive and I’m glad it’s over because it was so dragged out, I’m glad it’s over because it’s clarified the rules somewhat, that people now know better what they can and can’t do.

EB: Do you believe that the Parents Television Council had an inordinate impact on broadcast regulation because of their campaign after the Janet Jackson Incident?

Broeckaert 38 RR: I really don’t think so. I think, you know while you know, to be perfectly frank, sure it has an affect on the Commission with six hundred thousand complaints coming in. It has an affect on congress. Congress writes us letters, you know we work for them. They’re an independent agency, we’re a creature of congress, not of the Executive Branch. We report to them. Clearly it raises the profile of the case, but I don’t think it ultimately changes the fact that the Commission knows that aside this case the way it sees it, and in a close case, maybe it has some affect on

upper levels of decision making on the Commission but I don’t think it really has a fundamental effect because it’s more a bring it to our attention, let us figure it out and then make the hard choice. In this case it was a hard choice, a very hard choice, it was a very close case, I think. You know between you me and that camera (laughs), I probably wouldn’t have brought it if the decision was entirely up to me because I think it was so--- because I think notice was absent, and

I think the eventual argument was a probably weak one as it turned out to be.

EB: Jerome A. Barron, the Harold H. Greene Professor of Law at George Washington

University Law School has written that, “An important aspect of the Janet Jackson case is that it raised the question of what exactly the FCC’s fleeting material policy is. Was the FCC’s fleeting expletive policy limited to utterances? Or did it extend as well to fleeting images?” What’s your response Barron’s questions?

RR: Well I think we talked about that a little bit.

Broeckaert 39 EB: Yeah,

RR: And well I think it’s a weak argument. There was, as I said the 1960 notice that said hey nudity is bad, I think that’s basically what it said (chuckling). And it didn’t have a response to fleeting nudity. But at the same time I think that was a pretty weak argument in face of the

Commissions persistent use of, of repetitiveness as of one of the major factors of an indecency determination. I mean there were really only about three of them. You know explicit--- explicitness, how obvious is it, you know how repeated is it. These there are not many things that

go into the determination, and of course it has to be within the subject matter of indecency, and these things all fit although one can make the argument about whether you know whether it fits directly in the definition. But, I think it’s pretty clear that it’s good that we’ve resolved some of these issues and that fleeting images thing was probably pretty weak argument.

EB: Do you believe that broadcasts have been taking more or less risk with indecent exposure in the years since the Janet Jackson Incident?

RR: You know, that’s a very hard question because it depends a lot on what television I watch as opposed to what everybody else watches (chuckling), and I don’t follow it as a general matter, cause I don’t do that anymore. I think broadcasters have, as I said earlier I think, pushed the envelope a little farther along. Like some shows I have come across their, especially their innuendo references, are much more less innuendo and more explicit than they used to be. I think

Broeckaert 40 there’s no doubt about that, and I think that’s mostly attributable to the need to compete with people who are providers who aren’t subject to these rules. I think they stay this side to the line but I think in some cases they stay just barely this side of the line, and I think that’s a market driven problem. I think you know, the generations are changing, you know, younger generations have a different view of what’s acceptable and what isn’t. That mix alters the way broadcasters react, you know they are after a particular demographics. You know, twenty-four to thirty-five or forty-five or you know eighteen to twenty, thirty-four, those demographics are really big advertising demographics for them. So they’ve got to find a way to appeal to those people, and I think that causes them to try and move the line a little bit, and I have no doubts they will continue to try and do that. And, as long as it stays you know, in line with contemporary values,

the definition itself permits that move, and it’s the same movement we’ve been talking about that we said earlier between 1950 and 1999 or 2010. There’s a huge difference, I mean in the original days of television they wouldn’t let a man and a woman sleep in the same bed. So you know, our sensibilities change and that’s an interval part of the definition.

EB: Janet Jackson was know as a risqué performer before the performance. If it was another performer in an entirely different act all the way up to the moment and the incident still occurred, how different do you think it would have been? For,

RR: I think it went to the Commissions view of whether CBS should have known, and I think that was a big part of the argument. I mean they were saying we were innocent victims of our

Broeckaert 41 own production company, just like everybody else was, that we would have not approved it of we knew it was going to happen. I think it goes to if you know that who you are using is someone who has a tendency to wanna pull a surprise in a risqué way, if you know, I don’t know if they knew the music but I think they probably did. You know the songs lyrics were pretty explicit about this, they were already, they knew they were in an area where they were taking some chance, and I think that went into the Commissions viewpoint about whether they should be culpable or not. So I think if it were you know, if it were who can I think of whose a--- Julie

Andrews was singing and that happened (laughs), you know it would have been a much bigger surprise to them and we probably would have given them more credence to the idea that they were totally stunned by that had happened.

EB: What do you see in store for the future of FCC’s indecency enforcement?

RR: I don’t think it’s going to go away, I mean it’s a statutory requirement, it’s in the criminal code, it’s a we enforce it administratively, it’s referred to in the Communications Act, and I don’t think people are going to stop thinking about it and I think it’s gonna keep happening. I mean it’s an issue, I think broadcasters maybe better understand where the line is they have better technology to try and control it themselves, whether they make the judgement or not that’s you know their business, and we certainly don’t constrain it in advance, we don’t give you an opinion ahead of time, that’s a prior restraint under First Amendment law so we wait till it happens and if someone brings it to our, we don’t monitor it either. We don’t look at TV to see whether or not

Broeckaert 42 you know there is something indecent going on. We wait we expect the audience to tell us that, and they do, and I don’t think that’s going to stop.

EB: Is there anything else that you would like to comment about that we have not talked about?

RR: I don’t think so I think we’ve talked about pretty much all of it. I mean there’s a lot of nooks and carneys to indecency laws, very, it’s a tough area, and it requires a lot of attention to the particulars of each case. I mean, one of the real issues that we have is radio you know, college radio stations in particular, tend to wander off the beam frequently and you know, I just think it’s an issue that’s nettlesome. I don’t think it’s one that could easily gotten rid of. I think if you’ve said to people that well lets just not do this anymore I don’t think that you could get many people to actually agree to that. Some, fairly the First Amendment absolutists might agree to it, and I know some of my best friends and former colleagues would agree with it. But I don’t think it’s a practical matter as an agency responsible for regulating broadcasting and that there’s

and way we would come to that conclusion, it’s not our prerogative to do so anyways since it’s a statutory command, but I don’t think congress would do it either. I think people would be upset if there were no restraints on broadcast television.

EB: Well that concludes our interview thank you very much.

RR: Well you’re quite welcome Emily, nice to have met you.

Broeckaert 43 EB: Nice to meet you too. (Looking a cameras) power, recording, right...

RR: Right there (power button sound)

EB: Mhmm and then (other power sound)

Broeckaert 44

Time Index Log For Interview

Time (minutes) Discussion Taking Place

0:00 Talking about childhood

5:00 Talking about the difference between indecency and obscenity

10:00 Talking about reaction to PTC statement

15:00 Talking about the FCC chairmans reaction about the incident

20:00 Discussing the FCC’s fine to CBS

25:00 Talking about the FCC’s reasons for losing to CBS

30:00 Talking about reaction to case finally ending

35:00 Talking about whether or not CBS knew that MTV had planned such a risqué performance in total 38:20 Mr. Ratcliffe gives his final thoughts and the interview ends.

Broeckaert 45 Interview Analysis

In the Federal Communications Law Journal, W. Wat Hopkins writes that, “Since the beginning of its First Amendment jurisprudence, the Supreme Court of the United States has had a love- hate relationship with words.” (Hopkins, 2). History is written with a biased view by powerful individuals who can choose the events that highlight their cause or agenda. With regards to indecent and obscene speech, many believe that this type of speech pushes the boundaries of the

First Amendment. As a result of this belief, some argue that our government should intensely regulate it. Unlike a textbook, oral history provides readers with a more in depth account of an event. An interview with Robert Ratcliffe about the Janet Jackson Super Bowl Halftime Show

Incident provides a view from an individual member of the Federal Communications

Commission (FCC) rather than a statement from the FCC Commissioner or a general statement from the Commission as a whole. Mr. Ratcliffe provides a first hand insight about a major media event, as well as an interpretation of court cases that contributed to the FCC’s loss. He also discusses his opinion of whether or not CBS knew that the event was going to happen during the

Halftime Show.

The interview began with a discussion of Mr. Ratcliffe’s childhood and he explained how his hobby of radio operating grew into a communications career. He stated that he was,

“Interested in communications in general and how communications serve people, and the country,” (Broeckaert, 1). He continued to explain how after serving in Vietnam he pursued a

Broeckaert 46 career in law that led him to the communications policy division at the FCC. After providing some background on communication policy, he spoke about the major difference between obscenity and indecency. Obscenity is material not protected by the First Amendment where indecency is “more of a less severe form of that kind of activity or speech.” (Broeckaert, 2).

After describing the difference between obscene and indecent speech, the interview moved towards the 2004 Super Bowl Halftime Show. Mr. Ratcliffe watched the show at home with his family and had the initial reaction, “Wow did I just see what I thought I saw?” (Broeckaert, 3).

When he arrived at work on Monday the FCC had already received a vast amount of complaints about the incident. He described how the FCC began their investigation and the eventual case against CBS. He focused on the amount of complaints the FCC received, the FCC’s fine of CBS, and reactions from various sources about the incident. When discussing the court case FCC v.

CBS, Ratcliffe talked about all the issues the FCC tried to argue. Towards the end of his discussion about the case Ratcliffe admitted that it was “not the best case the Commission was trying to make.” (Broeckaert, 16). He did say though that the FCC accomplished getting the

Supreme Court to rule that the FCC was entitled to alter its policy on indecency so fleeting images could be considered indecent along with fleeting expletives. The interview concluded with Mr. Ratcliffe stating how indecency laws are a tough area, and each case is unique and

requires a lot of attention to details and that there will always be negative reaction to the FCC acting on indecency, whether its from people who are pro-indecency or anti-indecency.

Broeckaert 47 There were many factors that caused the FCC to lose in FCC v. CBS. The case in particular had many difficulties, but Mr. Ratcliffe’s opinion reinforces what caused the FCC’s loss. The issue was that the FCC failed to have a policy in place regarding fleeting images, as the policy had only been used against fleeting utterances beforehand. In the Federal

Communications Law Journal, W. Wat Hopkins argues that the major cause for the loss was because the FCC’s old protocol applied to fleeting utterances, not images, “Even though the exposure of Jackson’s breast was “a deceitful, and manipulative act,” the FCC’s policy on fleeting material was in effect when the exposure occurred, and a review of the FCC’s enforcement history demonstrated that the FCC had never limited its fleeting expletive protocol to only utterances. When the FCC took action against CBS, it did so despite “a consistent and entrenched policy of excluding fleeting broadcast material from the scope of actionable indecency,” and the action against CBS was a departure from its prior policy. The action therefore, was arbitrary and capricious under the APA.” (Hopkins, 3). Ratcliffe reinforced this argument by agreeing that the FCC failed to give notice about its policy change:

I think that in Janet Jackson in particular, I think it was because the court did not reach

the fundamental constitutional issues but it did think this was an unfair --- I think it was

strongly argued that the Commission simply hadn’t given notice that this was something

that wasn’t within the scope of the fleeting exception under indecency and if you go all

the way back to the original cases, to Pacifica, it’s pretty clear that one of the main

factors of Pacifica was these hyper receptiveness of these words being used by George Carlin in

his monologue, and the Commission relied on that shock value and repetition a lot,

Broeckaert 48 especially in the first what ten --- nine or ten years after the George Carlin, after Pacifica

decision, back then it constrained itself to just those kinds of cases. So I think we had a

problem with the notice issue and that we didn’t give... they didn’t know. They had a

fairly good argument that we hadn’t coped with. (Broeckaert, 16).

Both analysis reinforce the issue that lack of notice led to the FCC’s loss to CBS in court. By getting a first hand perspective from Ratcliffe, an internal analysis rather than an external analysis from an outside source was provided. Ratcliffe provided institutional knowledge regarding why the FCC proceeded in the way it did. He reinforces the major issues contributing to the FCC’s loss, proving why oral history is an important tool to document historical issues or events.

Whether or not CBS knew what would happen at the end of the Halftime Show still remains a debate between many. In the aftermath of this event, the use of tape delays for streaming broadcast dramatically increased with live shows. The issue raised was not the simple argument of whether Justin Timberlake and Janet Jackson planned it themselves, but if CBS even knew such a risqué show was going to occur. In a CommLaw Conspectus, Rose Acoraci argues that,

The FCC argued that CBS was directly liable for a forfeiture penalty under

47 U.S.C. § 503(b)(1)(B) for failing to take adequate measures to prevent potential

indecency during the Halftime Show, thus constituting a “willful” violation of the

Broeckaert 49 indecency provision. CBS contended that it took precautionary measures via its script and

wardrobe reviews and additionally, implemented a standard-industry-practice audio

delay. The FCC disputed the adequacy of these efforts by contending that CBS should

have instituted a video delay mechanism to guard against potential displays of indecency.

Because the FCC needed to demonstrate at a minimum that CBS acted recklessly when it

failed to implement a video delay mechanism, the court was unable to decide whether

CBS’s actions in the Halftime broadcast were willful. (Acoraci, 2).

Acoraci takes the view towards CBS that it did not prepare itself with the right tape delay machinery to prevent it from broadcasting the surprise ending. Ratcliffe takes a more skeptical view, believing that CBS should have known the risk they were assuming from the show they arranged, which was planned by MTV, knowing the risqué reputations of each performer.

I think it went to the Commissions view of whether CBS should have known, and I think

that was a big part of the argument. I mean they were saying we were innocent victims of

our own production company, just like everybody else was, that we would have not

approved it if we knew it was going to happen. I think it goes to if you know that who

you are using is someone who has a tendency to wanna pull a surprise in a risqué way, if

you know, I don’t know if they knew the music but I think they probably did. You know

the songs lyrics were pretty explicit about this, they were already, they knew they were in

an area where they were taking some chance, and I think that went into the Commissions

viewpoint about whether they should be culpable or not. (Broeckaert, 20).

Broeckaert 50

The contradicting points don’t differ drastically, but they do provide an insight as to why oral history’s can prove that even the slightest detail about whether or not CBS knew about the event can change how this case is viewed.

I have learned through this process how oral history provides a unique perspective of the people involved in an event. Oral history has taught me that there is a difference between a historian who studies an event only to write the facts as opposed to a person who witnessed and participated in the event itself. From oral history I have learned the importance of different viewpoint of history, because you never should believe that everything in the textbook is all that happened. Oral history provides the opinions and stories that keep a reader interested and encourages further research for a deeper understanding of an event.

Broeckaert 51 Appendix 1

Broeckaert 52 Appendix 2

George Carlins Broadcast of the Seven Dirty Words. Being such offending words, they were avoided in scripted material, and bleep censored in the rare cases they were used. The radio broadcast featuring these words led to a

U.S. Supreme Court Ruling that established the extent for the federal government’s regulation on broadcast television and radio in the U.S.

Here is the original Carlin comedy routine that caused the Fracas.

"I love words. I thank you for hearing my words. I want to tell you something about words that I uh, I think is important. I love..as I say, they're my work, they're my play, they're my passion.

Words are all we have really.

We have thoughts, but thoughts are fluid. You know, [humming]. And, then we assign a word to a thought, [clicks tongue]. And we're stuck with that word for that thought. So be careful with words. I like to think, yeah, the same words that hurt can heal. It's a matter of how you pick them.

There are some people that aren't into all the words. There are some people who would have you not use certain words. Yeah, there are 400,000 words in the English language, and there are seven of them that you can't say on television. What a ratio that is. 399,993 to seven. They must really be bad. They'd have to be outrageous, to be separated from a group that large. All of you over here, you seven. Bad words. That's what they told us they were, remember? 'That's a bad word.' 'Awwww.' There are no bad words. Bad thoughts. Bad Intentions.

Broeckaert 53

And words, you know the seven don't you? Shit, Piss, Fuck, Cunt, Cocksucker, Motherfucker, and Tits, huh? Those are the heavy seven. Those are the ones that will infect your soul, curve your spine and keep the country from winning the war.

Shit, Piss, Fuck, Cunt, Cocksucker, Motherfucker, and Tits, wow. Tits doesn't even belong on the list, you know. It's such a friendly sounding word. It sounds like a nickname. 'Hey, Tits, come here. Tits, meet Toots, Toots, Tits, Tits, Toots.' It sounds like a snack doesn't it? Yes, I know, it is, right. But I don't mean the sexist snack, I mean, New Nabisco Tits. The new Cheese

Tits, and Corn Tits and Pizza Tits, Sesame Tits Onion Tits, Tater Tits, Yeah. Betcha can't eat just one. That's true I usually switch off . But I mean that word does not belong on the list.

Actually, none of the words belong on the list, but you can understand why some of them are there. I am not completely insensitive to people's feelings. You know, I can dig why some of those words got on the list...like cocksucker and motherfucker. Those are...those are heavy- weight words. There's a lot going on there, man. Besides the literal translation and the emotional feeling. They're just busy words. There's a lot of syllables to contend with. And those K's. Those are aggressive sounds, they jump out at you. CocksuckerMotherfuckerCocksucker. It's like an assault, on you. So I can dig that.

And we mentioned shit earlier, of course. Two of the other 4-letter Anglo-Saxon words are Piss and Cunt, which go together of course. But forget about that. A little accidental humor there. Piss and Cunt. The reason Piss and Cunt are on the list is that a long time ago certain ladies said

Broeckaert 54

'Those are the two I am not going to say. I don't mind Fuck and Shit, but P and C are out. P and

C are out.' Which led to such stupid sentences as 'OK, you fuckers, I am going to tinkle now.'

And of course the word Fuck. The word Fuck, I don't really...well, this is some more accidental humor, but I don't really want to get into that now. Because I think it takes too long. But I do mean that. I mean, I think the word fuck is an important word. It's the beginning of life, and, yet it's a word we use to hurt one other, quite often. And uh, people much wiser than I have said, I'd rather have my son watch a film with two people making love than two people trying to kill one other. And I of course agree. I wish I know who said it first, and I agree with that. But I would like to take it a step further. I would like to substitute the word fuck, for the word kill in all those movie cliches we grew up with. 'Okay Sheriff, we're gonna fuck ya now. But we're gonna fuck ya slow.' So maybe next year I'll have a whole fuckin' rap on that word. I hope so.

Uh, there are two-way words, but those are the seven you can never say on television. Under any circumstances you just can not say them ever, ever ever, not even clinically. You can not weave them in the panel with Doc and Ed and Johnny, I mean it's just impossible, forget those seven, they're out.

But, there are some two-way words. There are double-meaning words. Remember the ones your giggled at in sixth grade? 'And the cock crowed three times.''Hey, the cock the cock crowed three times. It's in the bible.' There are some Two-way words, like it's okay for Curt Gowdy to say

'Roberto Clemente has two balls on him.' But he can't say, 'I think he hurt his balls on that play

Broeckaert 55

Tony, don't you? He's holding them. He must have hurt them by God.' And the other two-way word that goes with that one is prick. It's okay if it happens to your finger. Yes, you can prick your finger, but don't finger your prick. No, no."

Broeckaert 56

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