The Federal Communications Commission is proposing to fine ABC $1.4 million for airing in 2003 between 6 a.m. and 10 p.m. an NYPD Blue episode showing a woman's buttocks. The details are in this Notice of Apparent Liability for Forfeiture¹. According to the FCC, the episode violated its decency regulations because it depicts "sexual or excretory organs or activities". In response to ABC's argument that the buttocks are not a sexual organ, the ruling states:
Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law²³ and common sense.
This is the entirety of the FCC's discussion of this point.
I am shocked that the FCC has erred on such a simple linguistic point.² The buttocks are not used for sexual reproduction so they are not a sexual organ. Indeed, they are not an organ of any sort, which is defined by Wordnet as: "a fully differentiated structural and functional unit in an animal that is specialized for some particular function". Unlike the heart or the kidneys, the buttocks are not "specialized for some particular function".
The FCC's claim that case law shows that the butocks are, for legal purposes, a "sexual organ", is contained in footnote 23:
²³ See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (Supreme Court did not disturb a city’s indecency ordinance prohibiting public nudity, where the buttocks was listed among other sexual organs/body parts subject to the ordinance’s ban on nudity); Loce v. Time Warner Entertainment Advance/Newhouse Partnership, 191 F.3d 256, 269 (2d. Cir. 1999) (upholding state district court’s determination that Time Warner’s decision to not transmit certain cable programming that it reasonably believed indecent (some of which included “close-up shots of unclothed breasts and buttocks”) did not run afoul of the Constitution).
The two cases cited merely establish that the display of the buttocks may be considered indecent. In both cases, the buttocks are included in lists of body parts whose display is prohibited, but nothing in either case justifies the equation of the set of prohibited body parts with the sexual organs. Indeed, one can make the opposite argument. The relevant City of Erie ordinance is Ordinance 75-1994, codified as Article 711 of the Codified Ordinances of the city of Erie (cited in the opinion of the Supreme Court above). It includes the definition:
"Nudity" means the showing of the human male or female genital [sic], pubic hair or buttocks …
The ordinance lists the buttocks in addition to the genitalia, which is to say, the reproductive organs. This would be quite unnecessary if the buttocks were reproductive organs.
The problem for the FCC is that it wants to enforce a broad notion of indecency that includes display of the buttocks but that its own regulations contain a narrower definition. Both in its ruling generally and in its mis-citation of the case law in footnote 23, the FCC appears to believe that it can expand the definition of indecency from what it is to what it would like it to be by fiat.
I trust that the courts will overturn this idiotic ruling if it does not die of embarrassment first.
¹ Linguistic analysis at the FCC may be lacking, but somebody there has taste in machine names. The server on which this document is located is called hraunfoss, the name of one of Iceland's many scenic waterfalls. This set of photographs of waterfalls by Icelandic photographer Thomas Skov includes a nice photograph of Hraunfoss.
² Do you think that the FCC has been taken over by some of those Hispanic immigrants that we so often hear about, the ones that refuse to learn English? ¡Comisionados! ¿Pensan ustedes que las nalgas sean órganos sexuales? Según la Wikipedia: "Los órganos sexuales son las estructuras especializadas para la formación de los gametos o células reproductoras." Pienso que no incluyan las nalgas.Posted by Bill Poser at January 26, 2008 08:32 PM