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Supreme Court Throws Out Indecency Penalties Washington Post

The Supreme Court today issued a ruling on indecency in a case involving nudity on an episode of ABC’s “NYPD Blue” and obscenities broadcast on awards shows, The Washington Post reports.

The justices ruled unanimously in the closely watched case, throwing out fines and additional penalties against broadcasters who violated Federal Communications Commission rules.

However, they stopped short of a broader ruling on the constitutionality of the FCC indecency policy, the story notes. “The court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s ‘NYPD Blue’ could give rise to penalties,” the story reports. “ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million.”

The report adds: “The justices said the FCC is free to revise its indecency policy, which is intended to keep the airwaves free of objectionable material during the hours when children are likely to be watching.”

FCC Chairman Julius Genachowski said the decision “appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”

The report notes: “It was the second time the court has confronted, but not ruled conclusively on the FCC’s policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that ‘it is unnecessary for the court to address the constitutionality of the current policy.’”

The case was argued before the court in January. The length of time before a decision, and the narrowness of the ruling, may indicate that the justices “struggled and failed to reach agreement on a broader outcome,” the story notes.

Said Paul Smith, a First Amendment expert and a partner in the Washington law firm Jenner and Block: “The Supreme Court decided to punt on the opportunity to issue a broad ruling on the constitutionality of the FCC indecency policy. The issue will be raised again as broadcasters will continue to try to grapple with the FCC’s vague and inconsistent enforcement regime.”

The report adds: “For many years, the agency did not take action against broadcasters for one-time uses of curse words. But after several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television.”