Constitutional Law

?NYPD Blue? buttocks fine nixed

By By David L. Hudson Jr.
First Amendment scholar

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A federal appeals court panel today vacated an FCC fine against ABC for airing an episode of "NYPD Blue" that showed a woman?s bare buttocks for less than seven seconds.

ABC and many affiliates broadcast the episode in February 2003 in which actress Charlotte Ross, playing character Connie McDowell, displayed her nude backside as she prepared to shower. The FCC received indecency complaints and took action.

Calling the episode of the police drama indecent because ?it depicts sexual organs and excretory organs ? specifically an adult woman's buttocks,? the FCC issued a forfeiture order imposing a $27,500 fine on each of 52 ABC stations, totaling more than $1.4 million.

ABC and its affiliates appealed to the 2nd U.S. Circuit Court of Appeals. In today's summary ruling in ABC, Inc. v. FCC, a three-judge panel vacated the fine on the basis of the full 2nd Circuit?s 2010 decision in Fox Television Stations, Inc. v. Fox.

In that July 2010 decision, the 2nd Circuit declared the FCC?s indecency policy unconstitutionally vague. In November 2010, the 2nd Circuit denied full-panel review in the Fox case. The government has not said whether it will seek review of the Fox decision before the U.S. Supreme Court. It has until February to file a petition to do so.

In the "NYPD Blue" case, the 2nd Circuit panel determined that ?there is no significant distinction between this case and Fox.? The panel said that ?Fox?s determination that the FCC?s indecency policy is unconstitutionally vague binds this panel.?

The Associated Press noted that the panel also said TV stations are not fined for fleeting, unscripted profanities uttered during live broadcasts, and that the same principle should apply to the buttocks image.

This latest decision reaffirms that the FCC?s indecency policy simply doesn?t provide broadcasters with enough guidance on what crosses the line. In the July 2010 Fox decision, the 2nd Circuit said that ?the FCC should bend over backwards to create a standard that gives broadcasters the notice that is required by the First Amendment.?

The FCC has now received further notice that its indecency policy has constitutional problems.

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Full post as published by First Amendment Center on January 03, 2011 (boomark / email).