The U.S. Court of Appeals in New York (2nd Cir.) vacated Tuesday a $1.2 million indecency fine the Federal Communications Commission levied against ABC for nudity in a 2003 episode of “NYPD Blue.”
The decision comes in light of the court’s ruling in Fox Television Stations, Inc. v. FCC last July that the FCC’s indecency policy is “unconstitutionally vague."
In the episode, “Nude Awakening,” the “nude buttocks” of actress Charlotte Ross are visible for “slightly less than seven seconds,” according to court documents.
After receiving complaints about the episode, the FCC determined that the exposure was indecent and imposed in February 2008 a penalty of $27,500 against each of the 44 ABC affiliates that aired the episode during the 9 p.m. hour. Broadcasting indecent material is barred between 6 a.m. and 10 p.m.
The court determined that “there is no significant distinction between this case and Fox” and noted that the FCC conceded that the ruling in Fox “invalidated the [FCC]’s indecency policy in its entirety.”
Although Fox dealt with “fleeting expletives” during live programming and ABC, Inc. v. FCC involves scripted nudity, the FCC used the same indecency test in both rulings.
"The case turns on an application of the same context-based indecency test that Fox found ‘impermissibly vague,’” the court said. “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.”
The Fox case involved the live broadcast of the 2003 Billboard Music Awards during which “The Simple Life” star Nicole Richie uttered three expletives, one of which was blocked by network censors.
“Yeah, instead of standing in mud and ,” Richie said, responding to her co-star Paris Hilton. “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even the loss of their licenses, and it is not surprising which option they choose,” the court said in the Fox decision. “Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech.”
The court cited as an example the reluctance of CBS affiliates to air a documentary about firefighters in the World Trade Center on Sept. 11, 2001, because the stations were unsure whether the expletives that aired during the program could be found indecent by the FCC.