If this is the Super Bowl half-time show, will the FCC fine the network?

Slate legal columnist Dahlia Lithwick drives me crazy on a regular basis, but she hit a home run with her tongue-in-cheek account of the oral argument before the Supreme Court regarding the constitutionality of the Federal Communications Commission’s indecency policy, which has broadcast networks shivering in their boots over the possibility of another “wardrobe malfunction” at the Super Bowl or another trash-mouth star saying “fuck” as she picks up an Academy Award. The particular topic before SCOTUS was momentary nudity in TV drama, such as walrus-like actor Dennis Franz’s mega-butt flashing by our horrified eyes on “NYPD Blue.” In an Ethics Hero-worthy moment, attorney Seth Waxman, representing ABC, showed the Court how absurd and arbitrary it is to try to regulate taste and decorum in art. Lithwick writes:

“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.”

Law steps in where ethics fails, but sometimes only ethics can do the job. Standards of civility, decency, modesty and respect for others cannot be legislated, much less enforced. The crude, the vile, the abusive, the profane, the loud, the disrespectful, the bigoted, the slovenly and the rest of the members of our society who seem dedicated to making life mean, ugly and unpleasant can only be controlled by vigilant public exposure, criticism, disapproval and rejection, not by any laws….particularly when we have a provision in the Bill of Rights that declares that the freedom to express oneself offensively is more important than the harm done by offensive expression.

If we want a civil, genteel, respectful society, it’s up to us, not the government and not law enforcement, to make and keep it that way. If ethics fails, there’s no alternative but the butt of Dennis Franz.