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In a summary order today, the United States Court of Appeals for the Second Circuit struck down a 2008 FCC order fining 44 ABC-affiliated stations $27,500 each ($1.21M in total) for a 2003 episode of NYPD Blue which was broadcast at 9pm in the Central and Mountain time zones. [You can obtain the court's ruling via this link.]

You may recall that in July 2010, this same circuit court in the Fox case struck down the FCC's indecency rules regarding language as unconstitutionally vague, questioning how the FCC possibly could have determined that the term “bullshit” was “vulgar, graphic and explicit” while “dickhead” was not.  

Today, the question was boobies:

On February 25, 2003 at 9:00 p.m. in the Central and Mountain time zones, the ABC Television Network aired an episode of NYPD Blue that depicted an adult woman’s nude buttocks for slightly less than seven seconds. In the episode, Connie McDowell (played by Charlotte Ross), who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her nude buttocks are visible. As McDowell turns toward the shower, the side of her buttocks and the side of one of her breasts are visible. While she faces the shower, the camera pans down, again revealing her nude buttocks. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the front. Theo blocks the audience’s view of McDowell’s nudity. Each character reacts with embarrassment, and Theo leaves the room and apologizes. McDowell, covering her breasts and pubic area, responds, “It’s okay. No problem.” According to ABC and the ABC Affiliates, the scene was included to portray the awkwardness between a child and his parent’s new romantic partner and their difficulties in adjusting to life together.
The Parents Television Council ginned up a ton of complaints, and in 2008 the aforementioned fines were issued under the following policy:
The FCC defines indecent material as “describ[ing] or depict[ing] sexual or excretory organs or activities” and “patently offensive as measured by contemporary community standards for the broadcast medium.” In determining whether material is patently offensive, the FCC looks to three principal factors:
(1) the explicitness or graphic nature of the description or depiction 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; (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 context in which the material appears “is critical.” Id.
As part of its order, the FCC asserted this test was met:
Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense....

With respect to the third factor, we find that the scene's depiction of adult female nudity, particularly the repeated shots of a woman's naked buttocks, is titillating and shocking. ABC concedes that the scene included back and side nudity, but contends that it was "not presented in a lewd, prurient, pandering, or titillating way." ABC asserts that the purpose of the scene was to "illustrate[] the complexity and awkwardness involved when a single parent brings a new romantic partner into his or her life," and that the nudity was not included to depict an attempted seduction or a sexual response from the young boy. Even accepting ABC's assertions as to the purpose of the scene, they do not alter our conclusion that the scene's depiction of adult female nudity is titillating and shocking.

SHOCKING! But just as the FCC can't determine which language is indecent and which isn't without being unconstitutionally vague about it, the Second Circuit held today that it can't distinguish "acceptable" nudity from the forbidden stuff either:
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.
Indeed, as the Second Circuit said last time:
The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.  And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.
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.
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Originally posted to Daily Kos on Tue Jan 04, 2011 at 07:00 PM PST.

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