In what could fairly be described as a rhetorical mooning, the ABC Affiliate Association submitted a brief to the Second Circuit Court of Appeals last month filled with cheeky references to various naked backsides—and a raft of arguments as to why the Federal Communications Commission should keep its mitts off them.
The parade of posteriors was organized to defend the decency of the one belonging to Charlotte Ross, which appeared for approximately seven seconds of primetime during a February 2003 broadcast of ABC's NYPD Blue, and earned 45 affiliates $1,237,500 in fines.
To be sure, the brief presents a wholly serious argument intended to demonstrate the flaws in the FCC's ruling.
But interspersed among the “factual and contextual lacunae” and other dry bits of legalspeak, the ABC stations' lawyers had sprinkled winking puns, deadpan lessons in gross anatomy and liberal doses of sarcasm to make the point that the FCC had gone ludicrously overboard—and overbroad—in its broadside against ABC's broadcast backside.
Herewith, some of our favorite passages.
The lawyers establish the brief's sly tone early on, in their argument summary: “Even assuming, arguendo [for the sake of argument], that buttocks are within the FCC's regulatory grasp”—wink, wink—“the [FCC's ruling] repeatedly and arbitrarily misapplies its own multifactor test for patent offensiveness.”
They then lay out their case for why the FCC's regulatory understanding of buttocks is “wrong biologically and anatomically”: “Buttocks are part of the muscular system and have no sexual or excretory function.”
Quoting various dictionary definitions, the lawyers describe buttocks as “[e]ither of the two rounded protuberances on the human torso” and as “an area of morphological transition over the posterior surface of the hip bone between the posterolateral aspect of the trunk and the back of the thigh.”
“In fact,” the brief continues, “the [FCC ruling] cites no legal authority for the proposition that buttocks are sexual or excretory organs. Instead, the FCC's 'rationale' is mere ipse dixit combined with a speculative parade of horribles.”
Translation: Buttocks are indecent because we say they are—and if we didn't, broadcasters would fill the airwaves with them.
THE COPPERTONE DEFENSE
Taking issue with the notion that buttocks are “private parts,” the lawyers head to the beach, beginning with an excerpt of a court ruling from FCC Chairman Kevin Martin's home state, North Carolina.
“To hold that buttocks are private parts would make criminals of all North Carolinians who appear in public wearing thong or G-string bikinis or other such skimpy attire during our torrid summer months,” the North Carolina Supreme Court opined. “Our beaches, lakes and resort areas are often teeming with such scantily clad vacationers.”
To illustrate their point, the lawyers submit for exhibition an iconic image of bare buttocks on the beach.
“The FCC evidently thinks it covers buttocks,” the brief states, “but the exposure of buttocks, depending on the context, is not necessarily considered socially inappropriate and shocking. For decades, the Coppertone girl's buttocks were exposed on billboards across America—and in plain sight of children.”
Are lawyers typically so mischievous with their court briefs? They can be, says one veteran communications attorney.
Considering such turns of phrase as “to envelop buttocks within the first prong of the FCC's indecency scheme,” he concludes, “I expect that was someone enjoying themselves.”
Of course, there are limits. Says the attorney, “If you go too far, it's risky.”
Did the lawyers go too far on this one? You decide. To review the full brief—in all its naked glory—click here. And to watch an audio slide show narrated by B&C's Washington bureau chief John Eggerton, click here.
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