January/February 2011

The Second Circuit Affirms That the FCC’s Indecency Standard Is Unconstitutionally Vague

Holland & Knight Newsletter
Charles R. Naftalin

In a January 4, 2011, summary order, the United States Court of Appeals for the Second Circuit vacated an FCC Forfeiture Order that fined 44 ABC-affiliated television stations a total of $1.21 million ($27,500 per station) for the February 25, 2003, broadcast of an episode of NYPD Blue titled NYPD Blue: Nude Awakening between 9:00 pm and 10:00 pm in the Central and Mountain time zones. The FCC received indecency complaints about nudity in that episode, including that a woman’s nude buttocks were shown for approximately seven seconds.

These indecency complaints lay dormant for almost five years, which would have exceeded the statute of limitations on FCC enforcement action. In a spasm of activity, in January 2008, the Commission rushed through a notice of apparent liability proceeding and issued the Forfeiture Order which was vacated by the Second Circuit on review.

In the NYPD Blue case, the Second Circuit relied on its earlier decision in Fox Television Stations, Inc. v FCC, 613, F.3d 317 (2d Cir. 2010) (rehearing denied), which held that the FCC’s indecency policy is unconstitutionally vague. That case vacated indecency violations based on live television broadcasts in which the F-word and S-word were used. Under its long-standing policy, the FCC prohibits the broadcast of programming between 6 a.m. and 10 p.m. found to be indecent, i.e., programming describing or depicting “sexual or excretory organs or activities” and which is “patently offensive as measured by contemporary community standards for the broadcast medium.” In determining whether broadcast material is “patently offensive,” the Commission examines three factors: (1) the explicitness or graphic nature of the depiction or description of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

The court in NYPD Blue stated that it was bound by the holding in Fox and that there was no significant difference between the two cases. Indeed, the court noted that even though NYPD Blue concerned scripted (pre-recorded) nudity, the FCC’s decision was based upon the same indecency standard, which is so vague as to fail constitutional muster: “The FCC, therefore, decides in which context nudity is permissible and in which context it is not pursuant to an indecency policy that a panel of this Court determined is unconstitutionally vague.”

As a summary order, NYPD Blue lacks precedential effect. However, it is a powerful statement of the Second Circuit’s belief that no application of the Commission’s indecency standard is constitutional. In Fox, the court struck down indecency findings based upon live (unscripted) utterances of the F- and S-Words by Cher and Nicole Ritchie during the Golden Globes Awards. The decision in NYPD Blue should be seen as an expansion of the Fox analysis by holding that the FCC lacked the legal authority to sanction broadcast licensees for nudity, rather than words, presented during scripted and scheduled programming. Moreover, while the utterances of single words are fleeting, the nudity shown in NYPD Blue: Nude Awakening was longer in duration, including almost seven seconds of a close picture of a woman’s nude buttocks.

The FCC will have to decide whether to request review by the U.S. Supreme Court via a petition for certiorari. In all likelihood, the fate of the FCC’s indecency standard will be decided by the Supreme Court.

Related Insights