President Barack Obama’s administration apparently likes its entertainment served up family-style: it has asked the US Supreme Court to review a court decision that defanged the FCC's restrictions on TV profanity and nudity.
In two separate decisions, a federal appeals court in New York ruled that the FCC's indecency policy was too vague to be applied in two rather blatant situations. One involved the dropping of the so-called 'f-bomb' on awards shows on the FOX network, and the other concerned full-frontal nudity of a woman on ABC's 'NYPD Blue.'
In both cases, the court ruled that the FCC could not impose fines, effectively hamstringing the FCC's future ability to impose restrictions on language and nudity. Now, acting US Solicitor General Neal Katyal is filing an appeal to the Supreme Court, saying the precedent now "precludes the commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934."
At the heart is freedom of speech and the "chilling effect" that courts high and low must take into account when faced with censorship issues. Specifically, the appeals court, in the Fox case, said that the FCC’s policy caused "a chilling effect that goes far beyond the fleeting expletives at issue here." The concern is that without properly defined boundaries and triggers, the FCC's policy could be applied overzealously where it is not warranted.
This is an ongoing saga: The high court found in favor of the FCC’s anti-profanity policy in 2009, but did not in that instance weigh whether the policy violates the First Amendment. The decision merely concluded that federal regulators have the authority to censure broadcast TV networks airing isolated cases of expletives or overly sexual content.
The justices instead ordered the free-speech angle to be reviewed by the appeals court, which has now subsequently ruled in favor of broadcasters. If the court accepts the case, it will in the coming weeks settle the issue once and for all.