In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives – dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the “F-word,” and the “S-word.” In addition, an episode of ABC’s NYPD Blue featured a scene revealing a woman’s bare buttocks.
The FCC declared the programs “indecent.”
The broadcasters fought back with a lawsuit, claiming the FCC’s censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC’s policy as unconstitutionally vague.
The government defends the FCC policy, noting that broadcasters had been given fair notice.
Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.
“I think the thing that will interest the court most is just the prospect of chilling” and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.
“One thing that makes [Justice Kennedy] really passionate, is will people know whether they can broadcast something,” Mr. Elwood said. “If it is a close question whether you can broadcast Schindler’s List because there are naked people in concentration camps, that is going to give him a lot of heartburn.”