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Appeals court flushes FCC fine for NYPD Blue butt shot

احدث اجدد واروع واجمل واشيك Appeals court flushes FCC fine for NYPD Blue butt shot

The New Year arrives with yet another satisfying rebuke to the Federal Communications Commission's indecency rules. Nearly three years ago, the FCC threw the book at ABC television for a 2003 NYPD Blue episode in which actress Charlotte Ross's derriere was visible for a number of seconds. For this offense to the sensibilities of the NYPD Blue audience, the Commission fined 44 ABC affiliates $27,500 apiece—a $1.21 million penalty all told.

But now the US Second Circuit Court of Appeals has vacated the decision, declaring it akin to the Commission's "fleeting expletive" rules, which a Second Circuit panel declared harmful to free speech last July in Fox vs. FCC. That case involved similar punishments for Fox affiliates, following broadcasts of the s-word and f-bomb laden comments by Cher and Nicole Richie during the Billboard Music Awards.

"Indeed, there is no significant distinction between this case and Fox," the Second Circuit has ruled. "In Fox, the FCC levied fines for fleeting, unscripted utterances of 'fuck' and 'shit' during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found 'impermissibly vague'."

In this latest decision, the Second notes that the FCC has always conceded that "nudity itself is not per se indecent." Therefore the Commission subjectively decides "in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy" that the court has already ruled to be unconstitutional.

Since the Trojan war

It's worth revisiting the key observation of the Second Circuit in Fox. "Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War," a three-judge panel noted last summer, adding that "the digestive system and excretion" have been of equal interest.

Thus, barring all "patently offensive" references to these subjects without clear and non-subjective guidance chills speech, the justices warned— "because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."

The episode in question (a somewhat hyped YouTube version can be viewed here) involved the portrayal of an awkward moment just after Connie McDowell, portrayed by Ross, moves in with NYPD Blue detective Andy Sipowicz. She's naked and using the shower when Sipowicz son bursts into the room.

"Sorry," the boy cries out. "It's OK!" McDowell anxiously responds, while covering her body with her hands.

Following complaints, the Commission reviewed the episode. ABC insisted that the scene was just about a child and his dad's new girlfriend getting used to each other. The FCC saw it quite differently, insisting that the moment "dwells on" and repeats "sexual material"—specifically, views of Charlotte Ross's buttocks, which the agency found "titillating and shocking."

"Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense," the Commission added.

We are gratified to see a court declare that it is not the business of the United States government to determine what is or is not a "sexual organ." But these cases and the Janet Jackson nip/slip saga may still wend their way up to the Supreme Court for a final hearing on First Amendment questions.

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