Fox appealed the decision (in 2007) and the U.S. Court of Appeals for the 2nd Circuit in New York decided the FCC's policy was "arbitrary and capricious" and that the FCC had "failed to articulate a reasoned basis for its change in policy." The appeals court noted that the policy raised First Amendment issues and told the FCC that the policy needs more work. Again, the FCC was miffed to be thwarted and appealed to the Supreme Court, which agreed, at the urging of the Bush administration, to hear the case.

Kevin Martin, the FCC chairman, said that the appeals court had "put the commission in an untenable position" because the FCC's responsibility is to enforce indecency rules (which the commission crafted) but the appeals court judgment essentially prevents the commission from doing anything.

According to The Washington Post , the Bushies argued that "the lower court's ruling had left the FCC in an 'untenable' position between protecting children and protecting freedom of speech."

I guess I'm missing something here. In the land of the free and the home of the brave, have we become so delicate, so easily offended, so afraid of anything that could be considered "dirty" that we have to engage in these labyrinthine legal contortions to "protect children"? It's insane! Any child can sit in front of an Internet-connected computer and see prurient material at a level of detail and on a scale that we couldn't have even dreamt of when we were kids.

Fox has it in for the FCC over another recent matter: A $91,000 fine that the FCC levied for a scene in a show I've never heard of called Married in America. Apparently the episode contained a segment in a strip club in which key "details" were obscured using pixelation. Fox appealed and, in response, the FCC's denial of appeal wrote "The fact that isolated body parts were 'pixelated' did not obscure the overall graphic character of the depiction [and] despite the obscured nature of the nudity, it is unmistakable that the [characters] are participating in sexual activities and that sexual organs are being exposed." Fox filed a detailed rebuttal and refused to pay the fine.

Fox not unreasonably argues that what the FCC claims to be unmistakable would require that it was able to see what it claims to have seen. Due to the pixelation, it couldn't have actually seen anything so it was therefore assuming the characters were "participating in sexual activities and that sexual organs [were] being exposed." In other words, Fox is accusing the FCC collectively of having a dirty mind.

And weirdly a dirty mind it does seem to have. In January the FCC found 51 ABC stations guilty of indecency for an episode of NYPD Blue in which a woman's naked bottom was shown. The FCC ruled (and this is completely true) that the scene in question "depicts sexual organs and excretory organs -- specifically an adult woman's buttocks."

ABC attorneys argued (quite reasonably in my and most normal people's opinion) that buttocks do not constitute a sexual organ. The FCC countered: "We reject this argument which runs counter to both case law and common sense." Exactly how case law has a bearing on biological fact is not clear and why common sense apparently trumps logic is equally mysterious. It is this kind of twisted logic on the part of the FCC that makes the Supreme Court hearing so important.

The Supreme Court hearing is going to be crucial because, as Solicitor General Paul D. Clement wrote in his court brief, "The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives."