ABC’s $1.2 million fine for showing a partially nude woman in a 2003 episode of “NYPD Blue” was struck down by a federal appeals court because the U.S. government’s policy against indecency in broadcasting was too vague.
The U.S. Court of Appeals in New York today canceled the fine, which was levied against the Walt Disney Co. unit and 44 television stations, because it was based on a U.S. Federal Communications Commission rule the same court rejected in July.
ABC, News Corp.’s Fox, CBS Corp.’s CBS and General Electric Co.’s NBC had challenged the policy, which penalized profanity in broadcasting, saying it violated their First Amendment right to free speech. ABC asked the court to review the nudity fine in light of the July decision.
“Although this case involves scripted nudity, the case turns on an application of the same context-based indecency that Fox found ‘impermissibly vague,’” the appeals court said today.
In July, the appeals panel agreed with the networks in the Fox case that the FCC failed to tell them which words are “patently offensive” for purposes of its policy. The court said the policy was contradictory because some instances of profanity were fined while similar language was not, the court said at the time. The appeals court called this policy unconstitutionally vague.
The July decision involved a live broadcast in which Nicole Richie took the stage to present an award to Paris Hilton, her co-star in the Fox show “The Simple Life.”
“Have you ever tried to get cow s--t out of a Prada purse?” Richie said. “It’s not so f-----g simple.”
The FCC imposed the “NYPD Blue” fine after actress Charlotte Ross was shown naked from behind as she stepped into a shower. The scene, which first aired Feb. 25, 2003, was protected speech under the precedent set by the July decision, the appeals court said.
For airing the episode, the FCC imposed a penalty of $27,500 on each of the 44 ABC-affiliated stations, the court said.
“The Second Circuit’s decision confirms what we have already said: The Court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases,” Austin Schlick, the commission’s general counsel, said today in an e-mailed statement.
The commission last year asked the court for a rehearing or full court review of the Fox decision. The federal appeals court on Nov. 22 denied that request, said David Fiske, a spokesman for the FCC.
“We have always believed that this 2003 episode of the long-running and acclaimed series ‘NYPD Blue’ was not indecent and that the fines were unwarranted and unconstitutional,” Julie Hoover, an ABC spokeswoman, said in a telephone interview.
There has been no decision on whether to appeal the Fox decision to the U.S. Supreme Court, Fiske said.
The Parents Television Council denounced today’s ruling, saying the episode depicted “a lengthy and ogling scene” which they said “was intended to pander and titillate” and aired when children may see it, at 9 p.m. in the Central and Mountain time zones.
“Once again the Second Circuit has proclaimed that it knows better than the Supreme Court, the Congress, the FCC and the overwhelming majority of the American people,” the Council said in a statement.
The appeals court case is ABC Inc. v. Federal Communications Commission, 08-0841, and the related case is Fox Television Stations Inc. v. FCC, 06-1760, U.S. Court of Appeals for the Second Circuit (Manhattan).