Second Circuit: FCC Indecency Rules Are Still Too Vague

The Second Circuit ruled this week that ABC stations should not be fined for violations of the prohibition on broadcast indecency for an episode of NYPD Blue “that depicted an adult woman’s nude buttocks for slightly less than seven seconds.” The court found that the FCC regulations prohibiting indecent speech on broadcast that were unconstitutionally vague in Fox v. FCC were still too unconstitutionally vague. ABC v. FCC

“Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC levied fines for fleeting, unscripted utterances of ‘fuck’ and ‘shit’ during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found ‘impermissibly vague.’ According to the FCC, ‘nudity itself is not per se indecent.’ The FCC, therefore, 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. Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds this panel.” (Citations omitted.)

David Oxenford, Broadcast Law Blog: Court of Appeals Throws Out FCC Fines in NYPD Blue Case “We have likely not heard the end of the indecency story yet. These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues. So stay tuned as these issues are sorted out.”
Adam Bonin, Daily Kos: Courts: FCC can’t ban partial nudity from primetime, “Another victory for the First Amendment, and a defeat for the pearl-clutchers who still insist that America will go to ruin if there’s an occasional flash of nudity on network tv.”