BROOKE GLADSTONE: “In the Beginning, Marin Cogan writes in the February 3rd issue of ESPN, the Magazine, “There was a Nipple.”
[SUPER BOWL SOUNDTRACK UP & UNDER]
Ten years ago, 90 million people were watching the 38th Super Bowl. Janet Jackson is onstage in the middle of Houston’s Reliance Stadium, wearing a leather kilt and bustier. Justin Timberlake emerges from an elevated platform beneath the stage. He and Janet romp. And you know what happens next. Justin reaches over, grabs a corner of Janet’s right breast cup and gives it a hard tug.
[MUSIC/CROWD RESPONSE]
[DAILY SHOW 2004 CLIP]:
CORRESPONDENT: Janet Jackson’s apologized.
CORRESPONDENT: Miss Jackson herself –
CORRESPONDENT: The singer Janet Jackson popping out of her costume.
CORRESPONDENT: …Janet Jackson’s right breast.
CORRESPONDENT: Has apologized, sort of.
CORRESPONDENT: Will they be punished for what they did?
CORRESPONDENT: her breast-baring Super Bowl stunt….
CORRESPONDENT: No controversy could possibly top what happened at the halftime of the Super Bowl.
[END CLIP]
BROOKE GLADSTONE: That was The Daily Show’s montage, assembled after history’s first “wardrobe malfunction,” Timberlake's term, or, as Cogan put it, “the breast seen for 9/16ths of a second that changed the culture.”
MARIN COGAN: Yeah, it’s kind of unbelievable. If you recall at this time, TiVo was just sort of just coming into being. It was a relatively new product, but this really put TiVo on the map, and it remains, to this day, the most TiVo’d event in history.
BROOKE GLADSTONE: And one of the most enduring mysteries was who knew what, when.
MARIN COGAN: Right, everyone started pointing their fingers right away, and MTV, the NFL and CBS all said, we had no idea. Janet did an on-camera apology.
[CLIP]:
JANET JACKSON: MTV, CBS, the NFL had no knowledge of this whatsoever and, unfortunately, the whole thing went wrong in the end. I – am really sorry if I offended anyone. That was truly not my intention.
[END CLIP]
MARIN COGAN: They say that they meant to tear the sort of whole corset piece off, and she was wearing this sort of red lace lingerie thing underneath, but when he reached over and pulled it, it tore the whole thing off, and that’s how the wardrobe malfunction came to be.
BROOKE GLADSTONE: You report that Michael Powell, the FCC Chairman at the time, was relaxing with friends. He was watching the game. He saw it happen and remembers thinking to himself,
“Tomorrow is really going to suck.” [LAUGHS] So lay out the context for that thought.
MARIN COGAN: Yeah, so Michael Powell was in a really interesting spot. He was Chairman of the FCC, which is in charge of regulating indecency on broadcast, not something that he really wanted to spend his time focusing on. Of course, it ended up becoming the biggest issue he had to deal with. He testified on Capitol Hill for nine hours over it, in the end.
BROOKE GLADSTONE: As he said, “Nine hours on just 9/16ths of a second of broadcast time.”
MARIN COGAN: That’s right. In the run-up to this event, there were some people on Capitol Hill who felt like we were going through a coarsening of our culture, and they were really angry that the FEC wasn’t doing more to regulate broadcast indecency. So once this happened, there was a huge bipartisan backlash, and he really had to move quickly to act and get – get on top of the investigation. But, in the end, he told me he thought it was kind of ridiculous that this was the thing that we were gonna focus on, when there was so much more going at the time. You know, the Internet was really coming into being in 2004, and that was really an area of much greater interest to him.
BROOKE GLADSTONE: Yeah, I mean, he tells you now but at the time, he immediately decried the nation’s Super Bowl celebration for being, quote, “tainted by a classless, crass and deplorable stunt.”
MARIN COGAN: Right, but he told me, sometimes when you're a public official, as long as you’re not hurting anyone, you kind of got to go with what the public moment is. And we were really having a moment. The previous year, just to give you an idea what they usually dealt with, in terms of indecency complaints, they had about 111 indecency complaints, total. Over Janet Jackson's breast alone they got five - more than 500,000.
BROOKE GLADSTONE: And why do you think that is?
MARIN COGAN: The year before, Bono had uttered an expletive while accepting an award at the Golden Globes. The Parents Television Council, which was sort of founded to help make sure that the government was going after indecency on the airwaves, went after Bono over this incident. The FCC decided not to do anything about it, and faced a lot of backlash, both from Capitol Hill and from the Parents Television Council. So when this happened, there was already sort of a sense that our kids were being exposed to horrible things, and this was sort of the straw that broke the camel's back.
BROOKE GLADSTONE: Now, Powell told you that it's okay to go off on a rhetorical tangent in response to a cultural moment. He announced that he was going to investigate the show. It would be thorough and swift. And he focused on the production staffs, not on Jackson or Timberlake.
MARIN COGAN: He was really concerned that this was gonna turn into a “let’s go after the artists” sort of situation. There were some early rumblings suggesting that, that Janet and Justin were gonna take the majority of the blame. And when he looked at the Indecency Code, he saw that it technically lives in the Criminal Code. There is nothing, in theory, to stop someone from going after the performers for broadcasting this indecency. He wanted to get on top of it, make sure that the responsibility was on the big companies and that it didn’t get so personalized.
BROOKE GLADSTONE: And so, he demanded every scrap of documents that the production teams had about it. The government asked them to hand over their laptops. But they found nothing to suggest that anyone had planned this moment.
MARIN COGAN: Right. In the end, they couldn't find anything definitive that said, okay, there was some big conspiracy to make sure that this wardrobe malfunction happened. They did end up fining CBS for fleeting indecency, although the Supreme Court declined to hear a FCC appeal.
[BROOKE LAUGHS]
CBS ended up paying nothing, in the end.
BROOKE GLADSTONE: But, at the time, they were fined $550,000, the largest fine in the history of the FCC, which amounts to about roughly a buck a complaint.
MARIN COGAN: Yeah, it really speaks to the backlash at the time. Clear Channel faced another half-a-million dollar fine for airing Howard Stern. And he eventually was dropped by Clear Channel because of those fines and found his way into satellite radio, thus sort of putting satellite radio on the map, for the first time ever.
BROOKE GLADSTONE: Ah, that was one of the unintended consequences of the wardrobe malfunction. You outlined several of them. For instance, it’s responsible, in part, for the creation of YouTube.
MARIN COGAN: Yeah. Jawed Karim was then a 25-year-old Silicon Valley rich kid. He went online looking for the clip, copuldn’t find it anywhere online. The year later, he and some of his friend founded YouTube, which, of course, changed the way we watch video forever.
BROOKE GLADSTONE: And you think that if he hadn’t been looking for that 9/16ths of a second, maybe he wouldn't have moved so swiftly in this direction?
MARIN COGAN: Well, it’s hard to say. He was also thinking of that famous Jon Stewart Crossfire appearance.
[CLIP]:
JON STEWART: I made a special effort to come on the show today because I have mentioned this show as being a – bad.
[AUDIENCE LAUGHTER]
It’s not so much that it’s bad, as it’s hurting America.
[LAUGHTER] [END CLIP]
MARIN COGAN: And you’ll also really, 2004 is the year of Asian tsunami that a lot of people were capturing on cell phone cameras and digital video recorders for the first time.
BROOKE GLADSTONE: I can't imagine three more harmonious stories than Stewart slamming Crossfire, the Asian tsunami and Janet Jackson's breast.
MARIN COGAN: [LAUGHS] Yeah, it really – I mean, it sort of points to the, the fact that we were just sort of marching towards this moment when we were gonna be consuming media in a very, very different way.
BROOKE GLADSTONE: Okay, so meanwhile, the number of indecency complaints has sharply decreased.
MARIN COGAN: That’s just because of the era we live in now. Look at the legal theory underpinning this entire fight. It was the idea that the government could regulate broadcast because it was a public resource. You’d be sitting in your living room with your family, watching the television and all of a sudden the indecency would come on, and your children would be scarred for life. And, you know, it was intrusive in the way that other media wasn't.
That is a very quaint notion now, in the days when our major concerns are about our kids texting or texting while driving or cyber bullying. Kids didn’t have smart phones where they could view every bit of media, ever. And I think part of the reason why you're seeing less of these big sort of national sort of Washington debates is because we've sort of reached a cultural consensus that you can’t control everything that your child’s gonna see. You’re gonna have to deal with it with them because there's not a government fix for this stuff anymore.
BROOKE GLADSTONE: Marin, thank you so much.
MARIN COGAN: Thanks for having me.
BROOKE GLADSTONE: Marin Cogan writes for ESPN, the Magazine and National Journal.