Madonna half time show: What's a network to do when performers behave badly?

What began as a flap over a flash of a middle finger during the halftime show at Sunday’s Super Bowl has turned into a full-blown fracas over the future of the Federal Communications Commission, free-speech rights in an era of live events, and family-friendly programming in an age of nonregulated cable and Internet. 

In the background is a flurry of finger-pointing on all sides.   

It kicked off after British rapper M.I.A., performing during the Madonna-centric halftime extravaganza, flashed an obscene gesture and, apparently, issued a muffled obscenity during the live performance – which NBC's five-second-delay provision did not stop from being broadcast to the 111 million-strong TV audience (the largest for any program ever, according to Nielsen Fast National Data). Within an hour of the final play on the field, NBC issued an apology. In a statement, the network noted that the “NFL hired the talent and produced the halftime show. Our system was late to obscure the inappropriate gesture.”

The NFL, in its own statement as reported on ESPN, noted a failure with NBC’s delay system and chastised the performer, saying, “the obscene gesture in the performance was completely inappropriate, very disappointing, and we apologize to our fans.”

The Parents Television Council, meanwhile, says both parties are to blame.

“They clearly knew who they were getting when they hired Madonna, no stranger to controversy,” says Melissa Henson, the council's director of communications. “If you compare that with more mature performers such as Paul McCartney, then they should have known there was a high likelihood of  something inappropriate happening.”   

The incident takes place against a backdrop of dissent over FCC rules that govern what type of programming can be broadcast from 6 a.m. to 10 p.m., when children are presumed to be watching television. In 2004, the commission beefed up its policies on nudity and profanity on broadcast television (but it has no jurisdiction over content on cable or the Internet), fining and otherwise cracking down on networks that violate them. The appropriateness of FCC action is currently before the US Supreme Court, in one case with Fox Television and another with ABC Inc. 

Robert Miller, a partner in the Dallas office of Gardere Wynne Sewell who has represented clients before the FCC for 25 years, is one who says the network is not to blame and should not suffer a penalty as a result. 

“Despite the uproar over this incident, NBC has done nothing wrong under current law,” he says, via an e-mail. He is hoping the Supreme Court will find that the FCC must refine its indecency rules, so that it will stop holding "broadcasters like NBC accountable, even though they have taken reasonable steps to prohibit such unwanted exposure.”  

The issue is not only when and how networks should be punished for violating FCC rules, but also over the extent of free speech rights, as some see it.

“There is a growing disrespect for the First Amendment,” says Paul Levinson, author of "New New Media." In the grand scheme of things, whether a performer flashes a middle finger is “utterly meaningless and a sad commentary on what Madonna feels she needs to do to stay culturally relevant,” he says. The danger is that it may push the FCC to further erode First Amendment freedoms – and this, not a single puerile gesture that many viewers missed completely, is what is important, he says.  

Ed Arke, associate professor of communication at Messiah College in Grantham, Pa., says the furor that has ensued after the show eclipses the actual finger flash. “I was watching the halftime show with my children (12 & 14) and we didn’t notice initially,” says Mr. Arke, in an e-mail. “It is certainly on my radar screen now because of the added attention being brought in the aftermath.”

Ms. Henson at the Parents Television Council disagrees that the rude gesture itself is unimportant. She notes that the council sought assurances from the NFL a week ago that the halftime show would be appropriate for a family audience and received an e-mail assuring her that it would be. “But there are many families who have lost their trust after the second incident [the first being the Janet Jackson "wardrobe malfunction" during the 2004 Super Bowl halftime show] and will find other viewing options on Super Bowl Sunday next year.”