Supreme Court takes second look at “indecency” on television

The Supreme Court is expected to announce within days whether it will revisit a case that touches on government efforts to regulate profanity and nudity on television.

The court met in conference Thursday to decide which cases would be granted hearings and which would be resolved through lower court rulings.

The Justice Department appealed to the Supreme Court in April because of ongoing confusion over the Federal Communications Commission’s authority to enforce moral standards in broadcasting.

A lower court has ruled that the FCC’s definition of “indecency” is too vague.

Not only did the ruling dismiss fines against television networks, it also gave them broad discretion in choosing the portions of people’s anatomies they show and the foulness of language that can be used.

The ABC, CBS, NBC and Fox networks are parties in the case.

The appeal centers on a 2003 episode of “NYPD Blue” on ABC that showed part of one breast and the full buttocks of a nude woman.

The episode brought to a head growing displeasure by the FCC about how explicit television had become, both scripted and unscripted.

Other incidents that prompted the FCC to issue new obscenity rules included singer Bono’s 2003 acceptance speech on NBC’s live awards show, when he said, “really, really, f---ing brilliant.”

In another incident cited by the FCC, singer Nicole Richie said during the 2003 Billboard Music Awards, “Have you ever tried to get cow s--t out of a Prada purse? It’s not so f---ing simple.”

The FCC responded in 2004 with new rules, including one that prohibited “single uses of vulgar words” under any circumstances on television. The FCC also fined television networks that aired the shows.

The networks sued to overturn the fines, saying their First Amendment right of free expression was infringed by vague and inconsistently applied FCC obscenity rules.

The case eventually made its way to the Supreme Court two years ago.

The Supreme Court ruled the FCC did have authority to enforce the rules against broadcasters.

However, the high court also said the FCC must come out with better definitions of the nudity and language that can be banned without trampling the First Amendment.

The Supreme Court sent the case back to the New York-based Second Circuit federal appeals court to determine whether the FCC met its obligation of better definitions.

Last July, the appeals court said the FCC still was too arbitrary in fining broadcasters for brief scenes of exposed human bodies and “fleeting expletives.”

“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the Second Circuit’s ruling said. “To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

The first time before the Supreme Court, the Justice Department’s primary argument was that the obscenity ban was a legal authority of the FCC.

This time, the Justice Department’s petition of appeal emphasizes what would happen without rules against nudity and explicit language.

The petition says the courts have made it nearly impossible for the FCC to enforce any rules against “indecency” when children are watching.

The appeals court’s decision to overturn the FCC’s indecency rules creates an “extraordinary hobbling of the [Federal Communication] Commission’s enforcement efforts,” the Justice Department petition says.

The FCC’s authority includes considering the context of programming to determine whether it is indecent, even if the specific words or scenes are not listed in the rules, the petition says.

The case is FCC v. Fox Television Stations, No. 10-1293.