UPDATE: Obama Administration Asks High Court to Review FCC Indecency Rulings

Image by Getty Images via @daylifeActing U.S. Solicitor General Neal Katyal, at the Obama Administration's behest, urged the U.S. Supreme Court today to accept for review the FCC's indecency policy that restricts broadcasting nudity and profanity over the airwaves.

In its decisions in both Fox Television v. FCC (Case Nos. 06-1760, 06-2750, 06-5358) and ABC v. FCC (Case No. 08-0841), the U.S. Court of Appeals for the Second Circuit condemned the FCC's indecency standard as being unconstitutionally vague and violative of the First Amendment's free-speech guarantee. (See "TUOL" posts 1/5/11, 8/30/10.)

The government is arguing that the Second Circuit rulings effectively handcuffed the FCC and prevent it from carrying out its mandate to enforce statutory restrictions on broadcast indecency, whereas Hollywood moguls and First Amendment advocates contend that reinstating vague indecency rules would have a "chilling effect" on free speech.

The dedicated staff of  "TUOL" is in the latter camp, and also believes that the national debt, on-going conflicts in the Middle East, and health care are among a handful of issues that ought to command the attention of the Obama Administration ahead of  7-seconds worth of NYPD Blue actress Charlotte Ross's buttocks being broadcast in 2003, as captivating as "TUOL" remembered them to be.

UPDATE: 2d Cir. Overturns 'Cheeky' FCC Indeceny Fine Against ABC

Image via WikipediaIn ABC v. FCC (Case No. 08-0841), the U.S. Circuit Court of Appeals for the Second Circuit this week vacated a Forfeiture Order issued by the FCC in February 2008, against ABC and 44 of its affiliate stations that aired the naked buttocks of actress Charlotte Ross for seven seconds in a February 2003, episode of NYPD Blue.

Ia a 9-page decision, the appellate court followed up on its ruling last July in Fox Television Stations, Inc., v. FCC (Case No. 06-1760) that the FCC's indecency policy regarding "fleeting expletives" was unconstitutionally vague and violated the First Amendment. (See "TUOL" post 7/13/10.) Alluding to its earlier Fox ruling regarding the FCC's context-based indecency test, the Court wrote: "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 constitutionally vague."

The NYPD Blue episode, Nude Awakening, featured a scene in which Ross' Connie McDowell character is preparing to shower when her detective boy friend, Andy Sipowicz's (Dennis Franz) young son walks in on her, thereby getting a view of frontal nudity that the audience was denied. The FCC received complaints about the episode showing Ross' backside (none from the devoted "TUOL" staff) and imposed a $27,500 penalty-- $13,750 per buttock--against each of ABC's 44 affiliate stations that aired the 9 p.m. episode for an aggregate $1.21 million penalty. Under the FCC's so-called safe haven rule, indecent material may not be broadcast between 6 a.m. and 10 p.m.

The 2d Circuit, however, found the FCC's nudity policy that determined that showing a woman's naked buttocks was indecent was unconstitutionally vague and overturned the fine.