The Second Circuit Court of Appeals today issued a Summary Order vacating the $27,500 FCC fines imposed on a number of ABC television network stations in the Central and Mountain time zones which had aired, prior to the 10 PM safe harbor, an episode of the television program NYPD Blue on which a woman’s bare buttocks were shown on screen. We had initially written about this case when the fine was issued in 2008, here. While this case was on appeal, the Supreme Court issued its decision on the FCC’s indecency rules in Federal Communications Commission v. Fox Television Stations, Inc, dealing with "fleeting expletives", upholding the more rigorous enforcement of the FCC’s indecency rules begun under FCC Chairman Kevin Martin as being justified under administrative law procedures, but not addressing the constitutional issue as to whether the FCC’s indecency policy could be constitutionally justified. The Supreme Court remanded that case to the Second Circuit, which had initially thrown out the fines as being inconsistent with prior FCC precedent, for consideration of the constitutional issue. In a decision released this past July following the remand, the Second Circuit determined that the FCC rules were unconstitutional, as they chilled the speech of broadcasters without giving broadcasters sufficient guidance as to what speech was permitted and what speech was prohibited. Restrictions on speech which are "impermissibly vague" are constitutionally prohibited. In today’s decision, the Court relied on its decision from July and determined that, whether the indecency claim is based on speech or nudity, the FCC rules as to what is prohibited are impermissibly vague, and therefore the Court threw out the fines.
We have likely not heard the end of the indecency story yet. These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues. So stay tuned as these issues are sorted out.