Second Circuit Tackles Fleeting Nudity

NEW YORK CITY—The FCC's "Golden Globes Order": It's not just for words anymore!

Those who thought the Second Circuit had written its final words on "fleeting indecency" with its July 8 decision in Fox Broadcasting v. FCC were apparently wrong, according to an article in Broadcasting & Cable Online.

B&C's John Eggerton reports that at least one attorney in the case has revealed that a Second Circuit panel—apparently a different panel than the one that rendered the Fox decision—has called for briefing on the still-outstanding case against ABC Television involving fleeting nudity shown as part of a 2003 episode of NYPD Blue.

At issue is a seven-second sequence in which actress Charlotte Ross, playing Det. Connie McDowell, the girlfriend of Dennis Franz's Det. Andy Sipowicz character, shows her bare ass to Sipowicz's kid while she's getting ready to step into the shower. The FCC decided that that was indecent, and under its "Golden Globes" policy, which was recently thrown out by a Second Circuit panel headed by Judge Rosemary Pooler with respect to spoken indecency, the commission attempted to levy multi-million dollar fines on the network and several of its affiliates.

But in light of the Fox Broadcasting ruling, which found the commission's "fleeting expletive" policy unconstitutionally vague, the panel considering the ABC case, which was argued in February, 2009, has asked the attorneys for all parties to submit short briefs—no more than 15 pages each—assessing what effects the Fox ruling should have on the NYPD Blue case. The briefs are due by August 23.

Of course, the NYPD Blue case is not the only one that could be affected by the Fox ruling. The Third Circuit is still considering what to do about FCC v. CBS, the case involving the split-second airing of Janet Jackson's nipple during the 2004 Super Bowl halftime show. After the Supreme Court vacated and remanded the Second Circuit's earlier ruling that the FCC had violated the Administrative Procedures Act in revamping its "fleeting expletives" rule, the high court also remanded the CBS case, on which it had not yet heard argument, and the Second Circuit ruling in Fox may bear heavily on what the Third Circuit does next with the remand.

And of course, the FCC will likely appeal the most recent Second Circuit ruling to the Supreme Court, adding yet another layer of uncertainty to what can and cannot go out over the public airwaves.