Disney's Titillation and Litigation

The name Disney used to conjure up the image of family entertainment: a hint of magic, as a twinkling Tinkerbell lit up on the TV screen. But in the past two weeks, the name Disney has come to mean something else: a tawdry corporation stocked with lawyers making ridiculous arguments suggesting that nudity and obscenity on television are to be lauded, not protested.

In December, the Federal Communications Commission announced it would fine ABC affiliates in the Central and Mountain time zones $27,500 each - for a total of $1.4 million - for airing nudity before 10 pm, in violation of broadcast decency standards. The ruling was more than a little slow - it concerned a 2003 episode of ABC's "NYPD Blue" - but the reasoning was obvious.

It was a shower scene. A woman who'd stayed in a strange house for a one-night stand dropped her robe and was feeling for the water temperature, with a clear view of her naked from the side and from behind. Then a little boy that lived there woke up and walked in. The camera shot between her legs to show shock on the little boy's face. Only after the shock registered did she attempt to cover herself poorly with her hands.

Was this scene necessary to the story line? No. Was it there to titillate? Absolutely. ABC claimed it was "nonsexual nudity," and therefore okay.

When it was finally rapped on the knuckles, Disney-owned ABC was petulant. It responded first by joining the crowd in Tinseltown now asserting in federal court the "right" to drop the F-bomb on millions of children. Then the lawyers insisted to the FCC that there's nothing inappropriate in an ABC show lovingly fixating the viewer on the young woman's bare behind several times. It was only seven seconds, they protested.

But lawyers are often paid to assert the ridiculous in the face of common sense, and the lawyers for ABC affiliates were earning their keep. The FCC has sought to prevent plots that depict or describe, in an offensive manner measured by community standards, "sexual or excretory organs or activities." So the station lawyers claimed what was shown was merely two spheres of muscle. "The buttocks are neither a sexual nor an excretory organ," they submitted, an argument that would get laughed out of any high-school debating class.

It gets more absurd. Everyone knows that the FCC decency policy was written specifically about showing or describing private parts, and the obscene words that can accompany that. But the ABC lawyers decided to play doctor and argue that the "excretory" definition in the FCC's enforcement regime is too vague, since the skin, which excretes perspiration, and the lungs, which excrete carbon dioxide, can both be defined as excretory organs. Only in the surreal world of lawyering can one believe a network will be fined by the FCC for showing sweat glands or lung X-rays on TV, and no one has yet invented profane words for exhaling.

The network lawyers love to argue that when Washington gets involved in Hollywood's attempts to entertain and/or corrupt the audience at home, their judgments are arbitrary and unconstitutional. "Community standards" are impossibly vague, and differ wildly from city to city, they claim. Whether the standard is consistent or inconsistent, what Hollywood wants is for it to be non-existent.

If ABC station managers think that "community standards" are not being examined by the FCC, then why don't they take the initiative and discuss things with their community? Why don't they hold town meetings for concerned citizens and see what kind of feedback they receive? Try to find that community that believes it is appropriate to drop the F-bomb on children, or show nudity on their programs. Find the inconsistency in community standards. I dare you.

It would be nice if right now, CBS stations actually asked the public, "Do you think we should air a show where the hero is a serial killer with a buzz saw?" Sadly, I think the answer might be shocking to them.

Station managers have always greeted community-engagement efforts as a make-work waste of time that used to be required to get their broadcast license renewed. Or they feel that the "community" they would encounter would not be representative of their audience. Their ascertainment of community interest is only measured one way: by ratings. That kind of cavalier laziness quickly leads to anything-goes TV, or anything that moves the ratings needle goes.

It's amazing that networks like ABC would be so high-faluting in their newscasts about good corporate citizenship. Their industry's lawyers may be able to confuse every obvious point, except this one: when it comes to watching out for the eyeballs of children, they're saying The Public Be Damned.