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A backside brouhaha

Posted by Christopher Shea  November 21, 2008 02:02 PM

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What, exactly, are the buttocks? The FCC and ABC, Inc., are duking it out over that profound question, which has now reached the federal appeals court for the Second Circuit.

The debate has drawn in some of the country's top legal advocates. Seth Waxman, for example, who leads the appellate practice at the elite firm WilmerHale, has been mentioned as a possible Supreme Court nominee during Barack Obama's presidential term. But first he will make the bold argument, on behalf of ABC, that the buttocks are not a "sexual or excretory organ." Never have been, never will be -- whatever the anatomically illiterate FCC says.

In a brief filed on behalf of ABC and its affiliates against the FCC, he and his team stake out a bold claim: "[T]he buttocks are merely the fleshy part of the rump."

On the foundation of such arguments are great legal reputations built. (Okay, so maybe First Amendment issues do hang on the question.)

This philosophical and physiological query has been kicking around for a while. It stems from a challenge ABC filed against the FCC, after the FCC fined some ABC affiliates for airing, in 2003, an episode of "NYPD Blue" in which a boy walks in on a woman about to take a shower. In one of several segments the FCC found objectionable, the camera -- in the FCC's words --"pans down her naked back to her buttocks, pauses for a moment and then pans up her back …" The FCC deemed the scene "indecent."

The FCC's definition of indecency refers to language or imagery that portrays, "in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs" whenever children may be in the audience (which in practice means before 10 p.m.).

Waxman and the other members of the WilmerHale team have pounced on that language, as applied to the "NYPD Blue" scene: "[T]he indecency determination must be overturned unless buttocks are a 'sexual or excretory organ,'" they argue. "They are not":

Sexual organs play a role in reproduction; excretory organs remove waste products from the body. See, e.g., Webster’s Third New Int’l Dictionary (Unabridged) 2082 (2002) (defining "sexual organ" as "[a]n organ of the reproductive system"); Mosby’s Dictionary of Medicine, Nursing & Health Professions 687 (7th ed. 2006) (defining "excretory organ" as "an organ that is concerned primarily with the production and discharge of body wastes"). Buttocks -- "the fleshy parts on which a person sits," "the seat of the body," and the "rump," Merriam-Webster’s Collegiate Dictionary 156 (10th ed. 1993) -- play no role in reproduction or excretion.

"This," tersely reply the FCC's in-house lawyers, "is nonsense." By ABC's definition, even breasts wouldn't count as sexual or reproductive organs: They don't play a direct role in reproduction, either. To accept ABC's argument would imply that our TV screens could be "filled with naked buttocks and breasts during daytime and prime time hours" -- and the FCC would be powerless to do anything about it! To avoid such dystopian consequences, the FCC argues, its commissioners need to be able to deploy a "social" and "common sense" definition of breasts and buttocks, not a "medico-anatomical" one.

Waxman and ABC counter that if the FCC didn't want a medico-anatomical smackdown, it shouldn't put medico-anatomical terms in its definitions. If you mean breast and buttocks -- or … a few other bodily areas I'm not allowed to type -- just say the words. As is, the affiliates couldn't possibly know that the scene would land them in hot water, ABC argues; the FCC's fines were therefore capricious and unconstitutional.

Oral arguments have not yet been scheduled -- Waxman himself will present ABC's bold interpretation of the backside -- but they should be good. And fodder for a future confirmation hearing?

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