There was more skepticism from the Second Circuit Court of Appeals on the FCC’s stepped up efforts to curb broadcast indecency in the past decade.
A three-judge panel tossed out the feds fines against 44 ABC stations for airing an “NYPD Blue” episode in 2003 when Charlotte Ross’s nude rear was shown for seven seconds.
Their order was one of a handful of cases before federal courts that raise the prospect that the FCC will see its authority to slap broadcasters with fines for indecent content greatly curtailed.
Last year, the Second Circuit rejected the FCC’s sanctions against Fox for airing live Billboard Music Award broadcasts in which Cher and Nicole Richie, in separate incidents, dropped f-bombs. They said that the FCC’s efforts to punish broadcasters for “fleeting expletives” was “unconstitutionally vague.”
What is interesting about the “NYPD Blue” case is that it involved scripted, not live, programming, which would obviously give broadcasters the opportunity to review content before it made it to air. But the Second Circuit judges found that the FCC used the same rationale in determining if “NYPD Blue” was indecent — and they found that the feds justification was wanting. They said that the FCC “decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague.”
The FCC by striking down the FCC’s ‘NYPD Blue’ order, the Second Circuit’s decision confirms what we have already said: The Court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.”
The FCC is asking for a re-hearing of the Fox decision, which may be a way of just buying some time before taking the case to the Supreme Court. There’s some expectation that the high court could reconsider their 1978 Pacifica decision, i.e. George Carlin’s “seven dirty words,” which established the precedent under which broadcasters take guidance.