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U.S. Court of Appeals in Manhattan Concludes Again That the FCC Broadcast Indecency Enforcement Policy is 'Unconstitutionally Vague'

Contact: Robert Peters, Morality in Media, 212-870-3210

NEW YORK, Jan. 5, 2011/Christian Newswire/ -- Yesterday, the U.S. Court of Appeals in Manhattan vacated an FCC forfeiture order which would have imposed a monetary penalty on ABC TV affiliates that aired at 9 pm (CT) an episode of NYPD Blue in which an attractive female is shown disrobing in a bathroom, while an 8-year-old boy watches. According to the court, the FCC indecency policy under which the order was granted is "unconstitutionally vague." Morality in Media filed an amicus brief in the case in support of the FCC order and expects to file another if the U.S. Supreme Court agrees to hear the FCC's anticipated appeal.

MIM president Robert Peters had these comments:

A small part of me sympathizes with the TV networks. The FCC's broadcast indecency policy is a mess because enforcement policies change with changes in presidential administrations, because the FCC Commissioners and Enforcement Bureau don't always see eye-to-eye when it comes to broadcast indecency, and because of foolish court decisions.

I also think that the public and broadcasters would benefit if the FCC (with input from the public and industry) crafted a better and more coherent policy and enforced it consistently.

The truth of the matter is, however, that a more "coherent policy" shouldn't be needed. In particular, when it comes to the well-being of children, broadcasters should know what is and isn't appropriate and act accordingly. If they don't know, they shouldn't be broadcasters.

In particular, did ABC TV executives and legal eagles need additional guidance to determine whether a seven second scene in which an attractive female completely disrobes in front of an 8-year-old boy could violate the broadcast indecency law? In yesterday's "Summary Order," the Court of Appeals described the scene as follows:

"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 [she] 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 [her] naked from the front...Theo blocks the audience's view of [her] nudity...Each character reacts with embarrassment."

In his "Farewell to NYPD Blue: Best Moments Ever," Star-Ledger TV critic Alan Sepinwall described the scene this way (at www.stwing.upenn.edu/~sepinwal/bestmoments.html):

"And here's to you, Mrs. Sipowicz ('Nude Awakening' episode): I didn't have room to mention it in the Best Nude Scenes list for The Star-Ledger, so I'll slip it in here: Theo walking in on a stark-naked Connie in the Sipowicz family bathroom was arguably the show's most explicit nude scene (even with her hands trying to cover the naughty bits, I think we saw more of Charlotte than we ever saw of Kim or Amy or anyone else)..."

As the U.S. Supreme Court put it in an 1896 obscenity case Rosen v. U.S., "Everyone who uses the mails...must take notice of what, in this enlightened age, is meant by decency..."

Not too many decades ago, the TV networks had an industry-wide code with self-imposed standards that generally reflected community standards and that didn't include a green light for vulgarity or sexually provocative nudity. Back then the networks knew better.

Not that they don't know better now, but today they would rather play a cat and mouse game with the FCC, constantly pushing the envelope and then complaining that they don't know whether the FCC will deem this or that transgression of community standards actionable.

I would add that when it comes to adults in the workplace, employers are responsible for knowing how much vulgarity, sexual banter and nudity is permissible. While court decisions provide some guidance as to what constitutes sexual harassment, the guidance is far from crystal clear. But when it comes to indecent words and pictures broadcast on prime time TV into tens of millions of homes, at least one federal appellate court is of the opinion that broadcasters need "crystal ball" guidance to know for sure what they can or cannot get away with.

Hopefully, the Supreme Court will again disagree with the 2nd Circuit Court of Appeals.