Indecency Ball Could Soon Be in Supreme’s Court

Split decisions would set stage for major review of regulations

Broadcasters should be forgiven for secretly hoping the Third Circuit Court of Appeals upholds the FCC’s indecency ruling against the Janet Jackson/Justin Timberlake reveal in the 2004 Super Bowl.

No... they are not looking to give up any more First Amendment territory, or undo the recent victory in their appeal of the Fox profanity decision.

But in the unlikely event the Third Circuit did happen to rule that the FCC’s fleeting nudity policy was constitutional, you might have something confusing in the short run: a stalemate. With that ruling, there would be a split between the Third Circuit and the recent Second Circuit decision in the Fox case that the policy was unconstitutionally vague. The Supreme Court tries to avoid taking constitutional issues if it can help it, but a split in the circuits is a red flag that will usually get the court’s robes all bunched up.

“You never want to lose,” says veteran indecency attorney John Crigler, a partner with Garvey Schuber Barer. But Crigler also believes a Jackson victory for the FCC would supply the court with a clear invitation to take the case. At stake is broadcasters’ ability to push the envelope to keep up with the cable competition, or sometimes just to be able to show a statue on Antiques Roadshow without covering up the naughty bits.

The FCC already argues that the Fox decision is a split from the Supreme Court’s support in the Pacific case for a contextual approach to indecency enforcement. If Jackson comes down in broadcasters’ favor, the FCC will almost certainly appeal the decision, and the court could agree.

Judgment Days
In asking the Second Circuit to rethink its decision on fleeting profanity enforcement two weeks ago, the FCC said that the decision “threatens to have a wide-ranging adverse impact on the FCC’s ability to enforce federal statutory restrictions on the broadcast of indecent material.”

So, either way, it looks likely that the FCC’s indecency enforcement regime is headed for a date with the Supreme Court. “I think the Supreme Court would be delighted to have the case back on the constitutional issue,” Crigler says.

One needs a scorecard to keep up. Here is a look at where things stand on the indecency front as the courts contemplate their next move.

The FCC’s decision that swearing on 2002 and 2003 Billboard awards shows aired by Fox was indecent: The FCC has asked for a rehearing in the Second Circuit Court of its July ruling that the FCC decision—and, more broadly, the commission’s indecency enforcement regime—were unconstitutionally vague. That verdict came on remand from the Supreme Court, which had ruled that the FCC’s decision to pursue fleeting profanity was not arbitrary and capricious. The top court did not get into the constitutional question.

FCC’s $550,000 fine against CBS stations for Janet Jackson/Justin Timberlake Super Bowl reveal: On remand from the Supreme Court, the Third Circuit Court of Appeals is reconsidering its ruling that the FCC’s pursuit of fleeting nudity is arbitrary and capricious in light of the High Court’s decision.

FCC’s $1.4 million fine in January 2008 for an unobscured naked butt in an episode of NYPD Blue.
ABC challenged the fine. The Second Circuit is considering just-filed briefs on the impact of the Fox decision on that fine.

FCC’s $91,000 fine of Fox stations in February 2008 for pixilated nudity in an episode of Married by America. Fox challenged in U.S. District Court in June 2008. Briefs were filed in July 2009. A decision is still pending.

The FCC’s proposed fine against CBS’ December 2004 airing of Without a Trace. The FCC proposed a record $3.6 million fine, CBS challenged it, and the FCC has yet to follow up with a forfeiture order. Some attorneys argue that without a forfeiture order, the FCC’s five-year statute of limitations has expired, leaving the issue now moot. Others say an argument can be made that the fine proposal constituted action.

FCC’s 1 million-plus outstanding indecency complaints. The FCC has not proposed any indecency fines for more than two and a half years. The FCC in June proposed fining Fox $25,000 over an indecency complaint against American Dad, but not for content. The proposed fine is for not providing the FCC with all the information it asked for. The FCC does not comment on indecency complaints, but according to indecency attorney sources, there have been letters of inquiry on a few complaints—on American Dad and reportedly on an episode of Dr. Phil—and no action on others, and the statute of limitations on taking action on other complaints—like Trace—may have run out. But figuring out the status of individual complaints is difficult, says one First Amendment attorney. “What percentage of the complaints fall under any of those categories, I have no idea,” he says, describing it as “a black hole.”

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