The U.S. Second Circuit Court of Appeals ruled against the Federal Communications Comissions yesterday, throwing out fines imposed by the FCC on television networks Fox, CBS and ABC for indecency — curse words, nipple slips and the like — according to the Washington Post.
The judges decided that the FCC’s 2004 guidelines for what is indecent are “unconstitutionally vague.” Also, given the amount of exposure that television audiences have to other unregulated media, it isn’t fair to punish the networks with fines that have gotten as high as $325,000.
Specifically, the judges said the FCC isn’t clear enough on what’s permissible and what’s not. In one instance, the FCC concluded that uttering a term to describe bull excrement in an episode of the police drama “NYPD Blue” was offensive. But apparently the expression for kissing another’s derriere is permissible, the court noted.
The two main tests for indecency are: Does the material depict “sexual or excretory organs or activities”? And is it “patently offensive as measured by contemporary community standards”? Is a nipple an excretory organ or a sexual organ? And whose community standards are we using? None of these things have ever been black and white.
“The English language is rife with creative ways of depicting sexual or excretory organs or activities,” the judges wrote. “And even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.”
