June 21, 2012

THE SKED: Today In Network Indecency

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Written by: Mitch Salem
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In 2003, ABC’s NYPD BLUE aired a scene that included a brief shot of actress Charlotte Ross getting into a shower, exposing her rear end and the side of her breast to the camera.  The Federal Communications Commission fined ABC $1.4 million for those moments, and it also fined FOX for profanity used by Cher and Nicole Richie during the Billboard Music Awards in 2002 and 2003.

Today, with a unanimous 8-0 vote (Justice Sotomayor recused herself, because she’d been a judge on an earlier version of the case),  the US Supreme Court ruled that those fines were improper, which counts as a win for the networks.  However, it was an extremely narrow win that may have little practical effect.  The Court didn’t rule that the FCC had acted improperly in regulating this kind of content on network TV, just that in 2002-03, its announced standards didn’t specifically inform the networks that such content would be actionable.  In 2004, after the celebrated Super Bowl “wardrobe malfunction,” the FCC did issue new rules that specifically prohibited “fleeting” nudity and profanity, and since those rules came after the events of this case, it’s still an open issue whether the FCC’s current standards are constitutional.  (More cases are making their way through the legal pipeline that could decide that issue.)

A quick recap of the legal territory:  because broadcast networks make use of “public airwaves,” granted to stations by the government, they fall under FCC regulation.  (Cable networks, which are wholly private concerns that don’t use government-issued resources, are free of such rules, which is why the kind of content at issue in this case can air without any problem on basic, let alone pay cable.)  The question is how the government’s right to regulate users of its airwaves balances with the 1st Amendment right to free speech.  Back in 1978, when the Supreme Court decided the George Carlin “7 Dirty Words” case, it stated that because broadcast television and radio stations were the only available source for home entertainment, and freely available to children, FCC regulation of content was justified.  The networks have argued that in the world of cable and the internet, those factors are no longer valid–but the Court refused to reach that bigger issue today.

With continuing uncertainty as to what the FCC can and can’t regulate, don’t expect any change in network content as a result of this case.  The sex on Grey’s Anatomy won’t get any steamier, and the language used on Family Guy won’t get any stronger, until the networks get clarity on the rules they’re obliged to follow.


About the Author

Mitch Salem
MITCH SALEM has worked on the business side of the entertainment industry for 20 years, as a senior business affairs executive and attorney for such companies as NBC, ABC, USA, Syfy, Bravo, and BermanBraun Productions, and before that, at the NY law firm of Weil, Gotshal & Manges. During all that, he has more or less constantly been going to the movies and watching TV, and writing about both since the 1980s. His film reviews also currently appear on and In addition, he is co-writer of an episode of the television series "Felicity."