- Associated Press
Monday, June 27, 2011

WASHINGTON (AP) - The Supreme Court will take up the First Amendment fight over what broadcasters can put on the airwaves when young children may be watching television.

The justices said Monday they will review appeals court rulings that threw out the Federal Communications Commission’s rules against the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of ABC’s “NYPD Blue.”

The Obama administration objected that the appeals court stripped the FCC of its ability to police the airwaves.

The U.S. television networks argue that the policy is outdated, applying only to broadcast television and leaving unregulated the same content if transmitted on cable TV or over the Internet.

In a landmark 1978 decision, the court upheld the FCC’s authority to regulate both radio and television content, at least during the hours when children are likely to be watching or listening. That period includes the prime-time hours before 10 p.m.

The “NYPD Blue” episode led to fines only for stations in the Central and Mountain time zones, where the show aired at 9 p.m., a more child-friendly hour than the show’s 10 p.m. time slot in the East.

In the “NYPD Blue” episode, actress Charlotte Ross played a police detective who had recently moved in with another detective. In the scene at issue, Ross disrobes as she prepares to shower. After her buttocks and the side of one of her breasts are briefly shown, the camera pans down and reveals her nude buttocks while she faces the shower.

Then the other detective’s young son enters the bathroom and sees the naked woman. Embarrassment ensues as the child retreats from the room.

The administration included a DVD of the episode with its filing.

The 2nd U.S. Circuit Court of Appeals in New York said ABC said the scene was intended to portray the awkwardness between a child and his parent’s new romantic partner, and the difficulty of adjusting to the situation.

The part of the case involving the awards shows has been to the high court before.

Three years ago, the justices narrowly upheld the policy, but in a ruling that pointedly avoided dealing with First Amendment issues. Instead, the court directed the appeals court to undertake a constitutional review.

For many years, the FCC did not take action against broadcasters for one-time uses of curse words. The policy flowed from the 1978 decision that upheld the FCC’s reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.

But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its long-standing policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

The FCC said that some words are deemed to be so offensive that they always evoke sexual or excretory images. The policy essentially excluded news programming and some other broadcasts, including ABC’s airing of the World War II movie “Saving Private Ryan.”

Justice Sonia Sotomayor is not taking part in the case because she served on the appeals court during its consideration of some of the issues involved.

But Justice Samuel Alito, who sold his Walt Disney Co. stock last year, will participate. Disney owns ABC.

Alito recently acknowledged he should not have taken part in the “fleeting expletives” case that the court decided in 2009.

The new case will be argued in the fall or winter.

The case is FCC v. Fox Television Stations, 10-1293.

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