Bad Bunny's Halftime Show Wasn't Illegal or Indecent Under FCC Law

Many people of color in the United States understand that our existence — our mere presence in mainstream society — is seen as “indecent” or threatening by those who wish to silence and dominate us. Fortunately for Bad Bunny, that’s not the Federal Communications Commission’s legal standard.

Following his Super Bowl halftime show, which reached more American households than the football game itself, far-right figures ranging from Donald Trump to Super Bowl sideshow Kid Rock to random angry internet bros complained about everything from their own lack of Spanish fluency to the fact that Bad Bunny is sexier, more talented and more charismatic than them (my words, not theirs). 

In the bridge-too-far department, some government officials have even demanded that the FCC investigate Bad Bunny’s performance for indecency.

This includes Rep. Randy Fine (R–Florida), who in 2024 was held in contempt of court and ordered to attend anger-management classes for “making obscene gestures” and “mouthing curse words” during an official court hearing. Oh, the irony.

Fine has also been a fierce defender of Trump’s relationship with serial child rapist and sex trafficker Jeffrey Epstein. Now he fancies himself the decency police. As the mother of two minors, I think I speak for most parents when I say “no, thanks.”

How the FCC’s law on indecency works

As a lawyer who has practiced before the FCC for two decades, I have even more to say about Fine’s X post demanding an FCC investigation. Fine wants FCC Chairman Brendan Carr to go after Super Bowl broadcaster NBCUniversal and the NFL for airing “indecent, vulgar and offensive” content. Fine even wants to fine NBC and revoke its broadcast licenses. He suggests that “real Americans” are “outraged,” though he doesn’t elaborate on who he believes qualifies as a real American. I think I have an idea, though, and it probably doesn’t include the likes of me.

Colloquially speaking, this real American thinks the only thing indecent about Bad Bunny’s Super Bowl performance is how mad the extreme right is about it.

But legally speaking, Fine’s indecency allegations are nothing more than a thinly veiled attempt to demonize the multiracial joy that Bad Bunny showcased to a major international audience. Fine claims — without evidence — that Bad Bunny said the Spanish-language equivalent of “fuck.” I watched the performance live and reviewed the transcript and I didn’t hear or see it. And unlike Rep. Fine, I actually speak Spanish.

Fine also claims that Bad Bunny encouraged kids to take cocaine. Not true. Merely mentioning cocaine does not violate FCC indecency rules; just ask any classic-rock radio station that’s played these popular cocaine bangers for decades without even a peep from the agency. Indeed, Fine alleges a lot of other things that — while he may not like them — simply don’t amount to indecency under FCC regulations. Nor do they merit fines or broadcast-license revocations.

That’s because the FCC’s indecency doctrine is extremely narrow in scope, and has applied to only the most egregious cases of nudity and foul language — think “fuck” and “shit,” not “damn” and “ass” — airing on broadcast television and radio stations between 6 in the morning and 10 at night. The last time the FCC fined a broadcaster for a Super Bowl performance was in 2004, when Justin Timberlake infamously revealed Janet Jackson’s nipple. CBS never had to pay the six-figure fine for the “wardrobe malfunction” because the courts overturned it stating that the nudity was “fleeting.” Nonetheless, broadcasters across the country instituted mandatory tape delays on live performances. CBS did not lose any broadcast licenses.

The FCC has enforced indecency rules against Spanish-language broadcasters in the past, though the agency has exercised restraint in both Spanish and English. Spanish-language indecency complaints are especially difficult for the FCC to manage, given the agency’s deficit of native Spanish-speaking staff and the fact that cultural, ethnic and linguistic nuances render it highly irresponsible to rely on straight translations to support major government-censorship decisions of the nature and severity that Rep. Fine seeks here.

Indecency fact and fiction

The FCC website defines indecent speech as that which “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium,” and stresses that it must be “careful of First Amendment protections and the prohibitions on censorship and interference with broadcasters’ freedom of speech.” The FCC’s indecency fact sheet directed to a “not found” page at the time of this blog’s publication — perhaps it’s undergoing renovations from Carr as he awaits instructions from Trump. After all, Carr has been all too willing to appease the president in his endless crusade to crush dissent and anything else he sees as “woke” or contrary to the MAGA agenda.

Carr would be wise to steer clear of this one. In just the past two months, members of his own party — who have criticized him for going too far to censor free speech — called him for back-to-back congressional oversight hearings in the House and Senate. But if he sticks to his track record, Carr will pursue this complaint if the president directs him to do so. Without Trump’s political cover, he’d be foolish to act on the half-baked theories of a relatively unknown congressman who has neither served on relevant committees nor has any communications-law expertise.

If Carr does pursue this, he’s likely to lose not only in the court of public opinion, but in the court of law too.

A self-righteous pity party

I think it’s fair for us to take a step back and ask why this is happening. Even while controlling all three branches of government, our country’s far-right leaders still can’t seem to stomach the presence of people of color and art like Bad Bunny’s that normalizes a multiracial America in mainstream media. It’s why the administration has relentlessly attacked media companies for supporting diversity, equity and inclusion. 

In their thirst for prominence and dominance, the far right will readily criminalize our very being — and our free expression. That’s especially the case when that speech invites people to celebrate a different culture, to explore a new understanding of people who are different from themselves, or to imagine a future where we live together in a just and multiracial democracy.

It’s up to us, the people, to claim our title as “real Americans” — and demand that the government stop censoring free speech of all languages and viewpoints.

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