Bill Poser at Language Log has looked at the FCC's ruling that ABC violated decency standards by briefly showing a woman's naked buttocks, and finds it wanting. In particular Poser critiques the FCC's claim that buttocks are a "sexual organ," legally or otherwise.
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 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.
Related Posts (on one page):
- The FCC's Linguistic Incompetence:
- NYPD Blue's Expensive Rear View:
Ah, now there's something to chew over on a lazy Sunday afternoon.....
I suspect there's a thin layer of political appointees at the top of the FCC directing the pandering to the wowsers*, much like the FBI's announced initiative a while back to spend its resources trying to prosecute adult pornography.
*"Wowsers" - found this great Australian word on Prof Bainbridge's blog. It refers to a person whose mission in life is to prevent anyone and everyone from doing anything that might be fun, he regards the whole world as a sort of giant prison, with himself as the warden.
So I guess breasts are not a "sexual organ" either, since they are not used for reproduction? Bring it on, Janet Jackson!
Talk about meaningless quibbling... but I guess meaningless quibbling is what the law is all about...
I assume that breasts would also not be sexual organs, right? Would the penis even qualify? I'd say the testes clearly do, but those aren't often shown on TV (although I thought that the Soup showed a clip of Oprah holding someone's excized balls). Isn't the skin an organ? Couldn't one make a technical argument that this is the the only organ shown is most "offensive" images?
They are generally not part of the sex act, but they are certainly used for reproduction.
Is that really the problem here? We get so old we forget where the elixir of life comes from after we're born? Is that the human fascination with boobs in a nutshell? We stare at them wondering what indeed they could be for, as some innate response occurs somewhere else?
TV executives in this country are pushing to get more sex onto TV in a desperate attempt to stall declines in the numbers of idiots that watch their tripe. NYPD was testing the boundaries. The FCC stopped them. That's the whole story.
Anyone who thinks a woman's bare ass isn't an object of sexual interest is a eunuch, a liberal, or a lawyer. (I say this recognizing that there is a significant overlap among the three categories.)
I think that claiming that buttocks aren't sexual organs because they're not used for reproduction and aren't organs is taking a ridiculously literal reading of what the law is obviously saying. Buttocks are a part of the body that is mostly shown on TV for the purpose of sexual arousal. It's true that "part of the body" isn't literally synonymous with "organ", and "shown for the purpose of sexual arousal" isn't literally synonymous with "sexual", but the law can only be read that way by completely throwing away common sense.
Maybe for you but not for me.
Is the FCC pandering to those with the lowest level of tittilation? I did once have a "social conservative / religious nut" comment on the curves of my Porsche's , eh, ... buttocks.
Now try that with their right buttock.
FCC wins this one.
Then send me money. I am tired of subsidizing (they are public airwaves) beliefs that offend me.
The compromise has been the FCC prohibits broadly offensive material as if it were a public arena. That's because broadcast TV is in the public arena. In case you haven't noticed, exposed buttocks are prohibited in most other public settings.
If you want to view more than the rational compromise, there are bajillions of cable and satellite delivery options.
I'm a lawyer, though neither a eunuch (involuntary celibacy doesn't count, does it) nor a liberal (at least not in the manner which that label usually connotes in American politics), and I will readily admit that the naked female buttocks (if sufficiently young and callipygian) is usually an object of sexual interest to heterosexual males. That excludes, for me at least, the naked ass of Kathy Bates in "About Schmidt", and MOST of the stars of "Calendar Girls". However, if the FCC regulations are to be interpreted as prohibiting any showing of "objects of sexual interest", then how did Bay Watch ever make it on the air? Indeed, taking that course could result in prohibiting any airing of Women's Tennis (do you really think I would watch Hana Mandikova to study her backhand?), any beauty pagent, and at least half of most network's prime time schedules.
My bottom line, from a philosophical view rather than a legal one, is that the FCC has no business regulating content on television. If you don't want your children to see naked asses, or breasts, or shapely women in skimpy bathing suits, then exercise some parental control and turn off the TV -- give up TV altogether, or get a child lock for your TV, just don't try to control what the rest of us are allowed to watch. And please do not tell me that you know what is in my child's best interest - I personally think that raising a child to have a puritanical view of the world where every naked body is considered "dirty" is a form of psychological child abuse.
What is the point of writing a law down if the person reading it is allowed to ignore what it actually says and just sort of guess what the intention is?
If they don't want to see a bum on TV they should say so. They could make a list of what parts of the body can't be shown. It wouldn't be too terribly long would it? Is there a compelling reason why they chose to be so vague when it's possible to be quite explicit about what is and isn't allowed?
Okay. Now try placing your hand on a coworker's face, particularly their lips.
If the FCC can't provide a reasoned explanation for the different treatment, I would argue the rule is arbitrary and capricious. If the FCC's response (as I suspect it would be) is that they base their enforcement actions on "contemporary community standards" -- which translates to "if enough people send us complaints we take action" -- then it is equally arbitrary and capricious. In that case, the only rational explanation for the different treatment of two similarly situated asses is that one was bared before the eggshell-skulls in our midst could complain easily by email.
And you might have a point if the law prohibited "anything that is an object of sexual interest" but that's not what it says.
Or is gay.
Well, but if so few people are watching 'this tripe', then few people are exposed to it. So where's the harm?
Here's an idea: Lock out all tv channels except the Discovery and History Channels, and maybe the PBS ones, and the problem is solved.
Or better yet, do as my sister does with her family: No tv for anyone. Period.
As to linguistic imcompetence, maybe Prof. Adler will explain why "due process" includes "equal protection," or why a grant to Congress of power to regulate interstate commerce means that a state can't have rules for truck mudguards. Or why a provision that begins "Congress shall make no law" restricts the activity of every executive and judicial agency in the country. Or why a law taxing income means that a husband has to pay tax even if he assigns the income to his wife. Those all seem like bigger stretches to me than saying that a prohibition on televising sexual activities extends to bare buttocks.
It's tough for me to assume, like Orin Kerr would want, that you've made this argument in good faith. Should Planned Parenthood members be entitled to get their money back when GOP presidential candidates make pro-life statements during debates? Should GLAAD members be entitled to refunds from network affiliates who fill dead time with televangelists decrying homosexuality? The implications of what you want are staggering.
***
Cornellian: I am reminded of the definition of Puritan I once read--the sort of person who awakes in a cold sweat at 3 a.m. from a nightmare that someone, somewhere, is having fun.
Perhaps these 'primitives' have better attitudes towards sex than we do.
We all have to look in the mirror on this one, FCC is merely reflecting the overwhelming consensus in congress and from the American public on this issue. Congress has repeatedly passed legislation restricting internet access, tightening indecency for television and radio. This isn't some rogue agency imposing sharia law on the airwaves, they are us.
Here is poll from 2004 showing public attitudes after the Janet Jackson kerfuffle:
The Second Circuit noted this in Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 465: “Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.”
The Internet and converging technologies change everything. Then again, the Roberts court might decide to set aside Reno and apply broadcast regulatory standards of review to the Internet.
The more the FCC goes on indecency witch hunts like this, the more I think the regulatory framework should be modified to raze distinctions between the types of communication and instead focus on the functional portions of a communications network used to transfer content. Such a functional (also referred as layered) regulatory approach would treat similar content similarly, independent of source, service type, and destination. In such a world, broadcast television, cable television, and other video content would be treated similarly.
From your lips (or keyboard) to Roberts' ears.
The 2nd Circuit also said in that case -- also in dicta -- that the FCC's use of the "contemporary community standard" as a means of assessing when something is indecent is rather arbitrary and therefore may be unconstitutional.
(Total hack, but my writers are still on strike.)
By that definition, so is every part of your body that is needed to raise a child, like your brain, your hands and feet. Don't be silly.
While our culture may have sexualized female breasts--but not male breasts*--they are neither a sexual organ nor a "reproductive" organ.
*Except for they guy who got brest implants on a bar bet--those they won't show on TV! Ridiculous....
*Thanks to DiverDan for this extremely useful word of the day.
x,000 years ago [where x=1,000,000 to 10], neither lack of brains nor an occasional missing limb caused the human race to fail.
The lack of breastmilk would have been an end to the species.
...Actually, the lack of a nurturing instinct would mean the end of the human race. Doesn't make your brain something we can't show on TV, though, were such a thing possible.
With this new broad definition of "excretory organ" and prohibitions of broadcasting depictions therof that means that we can't show shots of intestines, whether real, in a surgical context, or illustrated on an anatomical chart. Nor can we show people eating sausages that use natural or artificial casings--since those casings are either made from or made to resemble excretory organs of animals--i.e., intestines.
You apparently didn't bother to read the thread before posting. Many people argue against the idea that your buttocks, as opposed to your anus, are excretory. If you can pass a bowel movement through your buttocks rather than your anus then I'll concede your point.
BTW, for those who are trying to put too fine a point on this, I must point out that your skin is an excretory organ, your feet, crotch and arm pits even more so. So if the standard is "excretory organ," then you can't show people at all.
And the FCC even allows the depiction of anuses on the air all the time. If they want to ban that then you'll never be able to show cats on air again except from the front.
This neo-Victorianism is getting out of hand.
Leaving that bit of nit-picking aside, it's interesting that so many of the "it takes a village" types, who want to tell people what to do when it comes to raising children in just about every conceivable area of life - no "junk" food, car seats until the kid's practically in college, never letting a kid get a single whiff of second-hand smoke, etc. - suddenly take a radically libertarian approach if anyone wants the slightest help from the larger society to protect kids from the sea of prurient, nihilistic, mind and soul-robbing sewage that makes up much of popular culture today.
But these priorities are out of whack - a kid will become a much healthier adult eating Twinkies and reading good books than watching MTV and eating his vegetables.
Yes, by people who just make stuff up and argue by assertion.
Citation please.
I see much banter about villages and priorities in your post but no rational argument or proof that one's buttocks are an organ.
Claiming that buttocks are an organ would mean that any part of the body is "an organ"; my finger, my biceps, my head. Such a claims is without any basis in the meaning of the term "organ."
Maybe those "it takes a village types" simply have a different view than you do of what constitutes a real harm to our children. Feel free to engage in the debate, but spare me the charges of hypocrisy, because that is a well-traveled two-way street.
As you clearly missed, the definition of "organ" was not the central theme of my previous comment. But leaving that aside, here you go:
-- http://web.jjay.cuny.edu/~acarpi/NSC/14-anatomy.htm
tarheel:
"And it's similarly interesting how so many so-called Federalists seek to aggrandize the federal government's power to peek into our bedrooms, peek into our phone records, limit our First Amendment freedoms, etc. "
There's a pretty substance-free set of clichés.
I must say I'm rather unimpressed by your rationale, i.e. the lack thereof. Your argument [paraphrased] "Poser is wrong. QED." Hmm...seems to be missing something, like an argument or even something pretending to be an argument..
That is such blundering response I can't tell if you are serious.
I wouldn't say "maybe", I think it's clear they have a different view. Obviously, that was implied by my earlier comment; if they had the same view, there'd be no issue.
OK, then how about debate that difference on the merits instead of resorting to tired, even cliched, charges of hypocrisy?
So are you seriously arguing that a partially naked butt is more dangerous to a child than sitting in the front seat of a car without a car seat? Or was that just something you grabbed from the "stupid liberal rules" file at the American Federalist Journal offices? I doubt one child has ever died in America from seeing a naked butt (if I'm wrong, post the link). Children die in car wrecks every day, and many are saved by car seats every day.
You can argue that the nanny state should not be telling parents how to buckle up their kids, but you can't then turn around and tell them what they can watch on TV.
Here is a clue. If secular broadcasters and their audience are fair game for religious astroturf FCC "indecency" complaints, then there is no reason that the rest of us couldn't attack religious broadcasters equally effectively and just as legally.
Anybody who declares a culture war shouldn't be surprised if the enemy they have defined fights back. And there is no law that limits the weapons to "indecency" complaints. There are plenty of other regs which also can be used by ordinary citizens for complaints, and some likely can be used even more effectively. No, I'm not going to outline any here. But they do exist, and broadcasters know them.
So, back to you. Here are the major organ systems of the human body (cribbed from Wikipedia for easy typing):
So, which single system do "buttocks" fall into that makes them an "organ?" You seem to think buttocks are all muscle--forgetting that they are a region of the body that is comprised of multiple organ systems, including your skin, lymphatic system, circulatory system, nervous system, skeletal system... Your suggestion that buttocks can be considered an organ is untenable and inexcusable. That you should even try to make it in the first place is bad enough but that you still defend it in the light of clear evidence of its falsehood does not help your credibility.
About that "central theme" issue. No doubt as "The Editors, American Federalist Journal" you realize that one shouldn't put something other than the central theme of your comment in the lede? You know, something like:
It very much was the central theme of your comment based on the structure of your comment. So, either you meant it to be so or you aren't using those editor's skills you supposedly have.
Well, we are all going to die someday, somehow, and it's not going to be pretty. Should the government also mandate that people drive Volvos, because other cars are not as safe? Thousands of people who die in car accidents every year would be saved if they had side-impact air bags and a steel cage, but we don't mandate that people drive certain types of cars. Beyond the most rudimentary standard of having a car that passes inspection, the government does not intervene.
(Note that, because the government mandated passenger-side air bags, they must now mandate that children under the age of 12 sit in the backseat so they won't be hurt by the air bag. Hum..... regulation breeding regulation.)
Now, people who complain about kids seeing sexual images on T.V. are not worried about the fact that the kid saw something dirty; they are worried that the kid will turn out to be promiscuous. In the era of STDs, teenage pregnacy, and all sorts of other fun stuff, it makes some sense to argue that kids should not be exposed to sexual material when they are not capable of handling it.
I didn't argue that seriously or in any other way. I didn't even imply it. I haven't used the word hypocrisy, or argued against the use of child car seats, or implied that seeing nudity would kill anyone either. You seem to be responding to a lot of comments no one made.
Again, I didn't argue against laws requiring car seats for children. But why couldn't one simultaneously argue for less regulation of private conduct and more regulation of public conduct? Why would that necessarily be inconsistent?
http://www.youtube.com/watch?v=41APzy5kqBU
Were speech as narrow as you propose the FCC could ban any image that wasn't text or spoken word. Fortunately that is not the case.
And if there were any justification for this worry, then we perhaps we should do something about it. Any evidence that the kids in Britain are more promiscuous that American kids?
Really, I find this hyperlegalism about organs, and the buttocks not being an "organ," very childish. That isn't the way courts usually operate. Next we'll have people arguing that a pound of flesh doesn't include a drop of blood, etc.
I am no fan of bureaucrats, but in this case they seem way more grounded in reality than their critics.
Perhaps this is an example of some people trying so very hard to be smart that they come full circle and end up stuck on stupid?
I wonder how the race survived all those years when family and tribal units lived in such close proximity that there was just about no privacy.
Then you find facts to be childish. If the FCC wants power to ban images of buttocks then they need new statute rather than definitions stretched beyond meaning.
While attempting to define "buttocks" as an organ may be very satisfying to the Pollyannaish crowd of Bowdlerizers who seem to be chiming in with support for non-fact based definitions, the law must go by rational definitions lest statues loose all meaning. We are a nation of laws, laws which must be based on fact rather than on the wishful thinking of those who wish they were different.
See State v. Parenteaua, 55 Ohio Misc.2d 10, 564 N.E.2d 505 (Hamilton Cty. Mun. Ct., 1990) and State v. Jetter, 74 Ohio App.3d 535, 599 N.E.2d 733 (Hamilton Cty., 1991).
WM13: Of course, absolutely. I'd like to think only pseudo-religious prudes who can't get laid would think otherwise. It's people who can't get laid who oppose public nudity and sex, because it constantly reminds them of what they can't have. So they don't want anyone else having it, either, and since they know they can't ban consensual sex in the privacy of people's homes, they try to ban it everywhere else.
While I don't want to see two people having sex outside of the Chic-Fil-A at the mall, I don't think the state should have the power to arrest and lock up and punish people who do that. But as for nudity and sex on television and in movies, even on public airways, I don't believe the government has the power to ban it. Free speech should be absolute from criminal prosecution. And by "criminal prosecution" i mean punishment by the government. The Government fining someone and calling it a "civil fine" is a load of crap, it's still a criminal charge and a criminal proceeding. Before long we'll have civil executions and civil life sentences without parole. If the government proscribes something, someone violates that proscription, and the government acts in response, it is a criminal proceeding no matter what they call it. There's no such thing as a "civil penalty" -- it's an oxymoron. But I digress....
By the way, I think "body part" is the phrase they were seeking. The other phrase they should have used is "naughty bits".
Huh? Are you talking about a thread other than this one? Zero people were making that argument, so I'm not sure what I'm supposed to have read. In any event, "excretory" in FCC-talk clearly includes the butt. Legal question closed.
Interesting legal theory. Summed, it is "What ever the FCC says is legal, is legal." Never mind the constitution, statute or case law. Fortunately that isn't the way law works and I don't know why anyone who values the rule of law over the rule of man would wish otherwise.
A statement like this denies the very real fact that psychological damage can be just, if not more devastating, than physical harm. I'm sure you didn't think your statement through thoroughly and really just meant that no child will be harmed by seeing something as mundane as a pair of bare buttocks.
Didn't practically all the characters of NYPD Blue show their butts at one time or another? So much so that it became a staple of late night monologues?
It's not just that buttocks are sexual, it's that sexuality (or comedy based on the idea that other buttocks are sexual but the ones being shown aren't) are pretty much the only reason that anyone tries to show buttocks on TV. While legs are sexual attractants, that is not the only, or even the major, reason that media shows legs.
The difference, but it hasn't been articulated, and certainly hasn't been articulated by the FCC, is what you might normally see. Not necessarily in a place of worship or in a normally conservative business environment, but you could get away with in the street in most places.
what would these other reasons be? and why do they not also explain showings of the butt?
Depends on when. Back in the early 30s, Claudette Colbert bared a leg to hail a passing motorist in "It Happened One Night." This was considered fairly scandalous. But even more scandalous was showing Clark Gable in a t-shirt. This apparently, was beyond the pale.
I really don't know how our parents' generation survived all that. I'm sure promiscuity increased dramatically after that movie came out.
This way everyone's happy.
Randy R.: Are you sure you don't have it backwards? The issue was that the dashing Clark Gable was not wearing any undershirt, which allegedly caused a precipitous drop in the sale of men's undershirts. (Snopes says it might be true, or the screen might have reflected then-changing fashions.)
So you're proposing that rule is, or should be, that you shouldn't be able to show parts of the body that others primarily show for sexual purposes?
By the way, if you haven't seen the excerpt in question, let me just say that it's the most explicit and extreme imaginable excerpt that could be characterized as the FCC characterized it. (It doesn't show anything the FCC didn't say it showed, and it shows what the FCC says it showed, but in a very close-up and graphic way.)