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High court to rule on FCC indecency ban

By Edward Wyatt
New York Times / June 28, 2011

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WASHINGTON — The Supreme Court said yesterday that it would hear a case that could decide whether the Federal Communication Commission’s policy banning nudity and expletives on broadcast television was a violation of the First Amendment.

The case is an appeal by the FCC of a ruling by the Court of Appeals for the Second Circuit in New York that said the commission’s policy against “fleeting expletives’’ was “unconstitutionally vague.’’ In 2009, the Supreme Court ruled in a 5-to-4 decision that the commission had followed proper administrative procedures when it invoked the ban on expletives during certain hours.

The Obama administration had asked the Supreme Court to overturn the recent appeals court decision, saying it would prevent the agency from effectively policing the airwaves. But when the case previously came to the court, several justices expressed skepticism that the ban on expletives was constitutional.

The case involves two instances of live award shows on the Fox network in which celebrities uttered profanities. In addition, the case involves a scene on the former ABC series “NYPD Blue’’ that included a naked woman. The incidents occurred in 2002 and 2003.

“We are pleased the Supreme Court will review the lower-court rulings that blocked the FCC’s broadcast indecency policy,’’ a spokesman for the FCC said in a statement. “We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.’’

The appeals court ruled that the FCC’s policy was inconsistent because the commission said that Fox stations violated its policy with the language on the awards shows but the agency allowed the use of the same language in a broadcast of the film “Saving Private Ryan.’’

The same language is commonly used on cable television shows, but broadcasters have been subject to stricter rules because of their use of public airwaves. Generally, the FCC has said that broadcasters cannot allow indecent material between the hours of 6 a.m. and 10 p.m.

Fox, in a statement, said, “We look forward to the Supreme Court’s review of the significant constitutional issues in the case. We are hopeful that the court will ultimately agree that the FCC’s indecency enforcement practices trample on the First Amendment rights of broadcasters.’’