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TV “indecency” case returns (UPDATED)

UPDATED Friday a.m.  The case has now been docketed as 10-1293.


The Obama Administration took back to the Supreme Court Thursday a major test case on the constitutionality of the government’s policy for regulating “fleeting expletives” and scenes of nudity on television programs.  The petition for review, plus an appendix (a large file), is here.  The government also sent to the Court, with this letter, a copy of the TV crime show episode in which nudity was shown.  (The case is Federal Communications Commission v. Fox Television Stationns, et al.; no docket number assigned yet.)

The Second Circuit Court, ruling last July — for a second time — in a case of words of profanity uttered by performers during two Fox TV awards shows, struck down the FCC’s “indecency” policy as a whole, finding it too vague to inform broadcasters of what was allowed, or not.  The Circuit Court then applied that ruling in a separate decision, involving scenes of a nude woman in an episode of “NYPD Blue.”

The Fox TV award show case, involving the use of the  “F-word” and the “S-word” during live programs in 2002 and 2003,  had been at the Court two years ago.  That resulted in a decision that the FCC did have the authority to change its policy from banning repeated uses of profanity to a ban on even a single use of such words.  The ruling, however, did not answer whether the FCC policy on “fleeting expletives” was constitutional; the case was sent back to the Second Circuit to decide that issue.

The “NYPD Blue” case, not before the Court previously, involved several fines of $27,500 each against stations on the ABC-TV network for a 2003 episode in which a naked woman in seen from several different angles, showing part of one of her breasts and a full view of her buttocks.

The two cases actually involve separate proceedings, but Acting Solicitor General Neal K. Katyal put them together in a single petition to the Court.  The first question challenged the Second Circuit’s ruling in the “fleeting expletive” case, and the second question tested its application of that ruling to the nudity scene.

The two should be considered together, Katyal urged, because together they would allow the Court to evaluate the FCC policy as it applies both to live programming — the Fox TV shows — and scripted “indecency”– the “NYPD Blue” episode.   Katyal added, however, that the Court might find it appropriate just to accept review in the Fox TV case; what is at issue in that case is a ruling nullifying the FCC policy in its entirety.

Katyal argued in the petition that the Circuit Court has virtually made it impossible for the FCC to have any policy against “indecency” on broadcasts that are shown at times when children might see them — between 6 a.m. and 10 p.m.   While the petition noted that the Circuit Court had commented that it was not ruling that FCC could not fashion a constitutional policy, Katyal argued that the alternatives would have to target a list of specific forbidden words or scenes, and that might run afoul of the First Amendment.

The appeals court decision, Katyal asserted, involves an “extraordinary hobbling of the Commission’s enforcement efforts.”

Aside from nullifying the entire policy, the Second Circuit, according to the petition, essentially deprived the FCC of its long-standing authority — ratified by the Supreme Court in its first “indecency” ruling in FCC v. Pacifica Foundation in 1978, to take context into account in determining whether a given utterance or depiction was “indecent.”

Federal law that governs the contents of radio and TV shows not only bans “indecent” programs, but also bans outright obscenity.  The ban on obscenity, however, is not at issue in the Fox TV and ABC-TV cases.

Another major “indecency” on TV case — one involving a live display of nudity — has been at the Court previously and may be on its way back up to the Justices before much longer, although it appears to be moving on a fairly slow track in an appeals court.

That case is the renowned “wardrobe malfunction” case, involving a halftime show during pro football’s Super Bowl game on Feb. 1, 2004, on CBS-TV.   That network was ordered to pay a penalty of $550,000 for a live peek, lasting nine-sixteenths of a second, of one of the breasts of performer Janet Jackson when her costume came partly undone — supposedly, on purpose.   The Third Circuit nullified the fine, and struck down the FCC policy, concluding that the agency had not justified switching to a “fleeting” indecency standard.

After the Supreme Court’s 2009 ruling in the Fox TV “fleeting expletive” case, it told the Third Circuit in May 2010 to reconsider its ruling on live nudity, taking the Fox TV decision into account.    The case in the Circuit Court is CBS Corporation, et al., v. FCC (docket 06-3575).

After the case got back to the Third Circuit, it held a hearing in February 2010.  Before and since that hearing, the three-judge panel has called on lawyers in the case four times to file additional written briefs on issues in the case.  There is no timetable for that Court to decide.

Recommended Citation: Lyle Denniston, TV “indecency” case returns (UPDATED), SCOTUSblog (Apr. 21, 2011, 6:36 PM),