Supreme Court Considers Fleeting Expletives and Brief Nudity on TV…Again

Did you know that earlier this week, the nine justices of the US Supreme Court were asked to consider the bare asses hanging over their heads?

If you said “no,” don’t feel bad. It was news to me that there are bare asses hanging over the highest court in the land — the one that decides how much of a bare ass is indecent, and whether it can be banned on television. This is some classic ass — that is, stone lawmakers from Classical mythology, who stand in judgment over all our asses. Just like the justices of the Supreme Court — except for Justice Sonia Sotomayor, who recused herself.

Dahlia Lithwick at Slate relates what must surely be the most exciting consideration of ancient Greek ass in this week’s legal news. Lithwick was reporting earlier this week on the arguments of attorney Seth Waxman, representing ABC television in the case concerning a 2003 broadcast of an episode of the NYPD Blue episode “Nude Awakening,” in which actress Charlotte Ross exposes the side of her butt and the side of her boob.

Personally, I feel like I’ve been hearing about nudity on NYPD Blue since shortly after I became old enough to realize those people in bed together on “Hill Street Blues weren’t “just hugging and kissing.” That might be overstating it a bit, but the NYPD Blue case is indeed an old one — and one of ABC’s arguments is the large amount of nudity on NYPD Blue that they weren’t fined for. Another is that the FCC sought the $1.4 million fine in 2008, for a rerun — not for the original broadcast.

The case was decided in January of 2011 in favor of ABC and its affiliates…and as far as I know, the asses of the gods weren’t a factor. But the FCC appealed the case to the Supreme Court. On Tuesday, attorney Seth Waxman argued the case for ABC. As Lithwick puts it:

Waxman patiently explains to the rapt justices that ABC was never sanctioned for over a dozen NYPD Blue episodes over nine seasons that included bare buttocks. Not until the last one. Arbitrary, bad FCC. Then, he raises his arms, Moses-like, to the glorious friezes that surround the interior of the ceremonial courtroom. And then Waxman points to one sculpted classical stone lawgiver after another as he guides the justices through the fleeting bottoms that pervade their lofty spaces: “There’s a bare buttock there, and there’s a bare buttock here,” he marvels. “And there may be more that I hadn’t seen. But frankly, I had never focused on it before.” To which Justice Antonin Scalia grits out, “Me neither,” while all of the justices gape up at the walls above them, like bemused Muppets on Veterinarian Hospital.

That’s right…at the highest court in the land, Seth Waxman dropped the butt-bomb.


There seems to be a perfect storm of court action about “fleeting expletives” and partial on television nudity in recent years. It was only in November, 2011 that Nipplegate was finally decided, and the fine levied for Janet Jackson’s boob thrown out. But the court’s decision doesn’t nullify the FCC’s current polcy — just the fine in the Janet Jackson case. Then there’s the case of the FCC’s capricious policy on “fleeting expletives,” those fucks and shits that people like Cher and Bono seem to toss around whenever they win awards. In 2009, the Supreme Court avoided deciding a case about fleeting expletives, because the Supremes didn’t want to consider the Constitutional questions involved; they kicked it back to the circuit court, which in 2010 ruled the FCC’s policy was unconstitutional.

Maybe you’re with me in spotting the weirdness in such cases. Here I am discussing “fleeting expletives” and partial nudity on the internet, where essentially any amount of nudity and expletives are available.

Granted, I’m speaking to a “captive audience” — you’re reading this online, on a sex-oriented adults-only blog, but…could you ever imagine serious damage being done to the moral fabric of society by the side of a boob or — gasp — even a nipple? And as for Cher and her potty-mouth, it seems almost quaint in this day and age. And speaking of quaint, isn’t it adorable when a Justice says something like this:

[Justice] Kennedy replies that the V-chip is available and that “you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They’re the only ones that know how to do it.”


The V-chip? The V-chip? That weird old thing is still kicking around?

Don’t get me wrong; the FCC is an insidious force for censorship, especially since the huge policy changes the Bush Administration implemented, which the Obama Administration has defended.

But the death of broadcast media is apparently so obvious that even the Supreme Court has figured out it’s happening. This whole argument is going away, and fast…and the Court finally knows it.

Justice Elena Kagan, arguing in favor of regulation: “It seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don’t exist anymore.” And Justice Roberts says: “People who want to expose their children to broadcasts where these words are used, there are 800 channels where they can go for that. All we are asking for…is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”

Huh? Aren’t Kagan and Kennedy providing the perfect argument against censorship — one of the best arguments? That it’s irrelevant?

Justice Samuel Alito takes the opposite view: “Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8-track tapes….So why not let this die a natural death?”

“This” presumably means FCC regulation of things like fleeting nudity, fleeting expletives, and Janet Jackson’s boob.

Why not, indeed? Technology changes at the speed of human ingenuity; why can’t the Supreme Court do the same? Or is the Court totally unable to understand its growing irrelevance in deciding matters of obscenity, just as the FCC can’t stop being wagged by the ignorant minority that would rather protect “the children” from a bare ass than face the fact that we all have asses, and showing one on TV is neither obscene nor corrupting?

Gee, it’s almost like a time-traveling tgeam of ancient gods and goddesses, from a culture that valued learning and open debate — at least for the anointed — just mooned the Supreme Court.

Then again, maybe the gods have been mooning us all these years — and nobody noticed.

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  • Steve

    I have to say that I consider this to be a nice bit of news. It is high time that the US joins the rest of the world and recognize that people do use foul language and that blue speech makes up a large percentage of the vernacular in our society. Gone are the days when the occasional f word could turn someone into a social outcast or cause them great embarrassment. It IS how people speak and to ban it from the public airways is so last century.

    Additionally, the appearance of a woman’s nipple or a nice pair of bare butt cheeks is a welcomed relief to the current stuffy, blushing ‘OMG I think I just saw something’ childish approach to the human body that we Americans seem to hold dear. In fact, I have watched shows where the fact that the woman is clutching a blanket to cover her breasts actually draws attention to the fact that she has breasts and they are right there. I find myself trying to will that damned blanket to slip. It won’t but a guy has to have hopes doesn’t he?

    The very thought that an accidental nipple slip that looked more like the popping out of some sort of weapon from a robotic breast then any real nudity could possibly bring about hefty fines is Victorian and more than a little bit stupid. For once the Supreme Court made a good decision.

  • Hug

    Walt, I would agree. A perfect storm is surely one that does no damage, kills no-one but looks very pretty and sounds good? Preferably also cleaning my drive and knocking down some leylandii.

  • Walt

    Can the world call a moratorium if not outright ban on using the phrase, “a perfect storm”? It is a meaningless cliche made popular by a completely forgettable movie. Writers should all ask themselves: What would Joan Didion do?