Supreme Court Upholds FCC Policy on ‘Fleeting Expletives,’ Returns 1st Amendment Issue to Lower Court

Apr 28, 2009  •  Post A Comment

Swearing on television remains potentially punishable by FCC fines following a Supreme Court ruling that upheld the power of federal regulation over “fleeting expletives” in live broadcasts.
In a 5-4 vote written by Justice Antonin Scalia, the court upheld a Bush administration Federal Communications Commission policy against fleeting expletives on broadcast television.
The ruling essentially bans isolated outbursts of what Mr. Scalia referred to as the “f-word” and the “s-word” in live telecasts, and upholds the FCC’s ability to fine broadcasters for such fleeting expletives.
However, the Supreme Court did not rule on whether the FCC policy is a violation of the First Amendment guarantee of free speech. The decision today reversed a ruling from the 2nd Circuit U.S. Court of Appeals that had called the fleeting expletives ban “arbitrary and capricious.”
The dissenting Supreme Court justices— Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer—expressed concern about First Amendment issues raised by the ruling. The First Amendment issue likely will be decided by a federal appeals court.
That’s good news for Fox, the broadcaster cited in the case, which stemmed from the network’s airing of the Billboard Music Awards shows in 2002 and 2003, when Cher and Nicole Richie uttered the f-word on live TV.
“While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case,” Fox said in a statement. “Fox is looking forward to the 2nd Circuit’s consideration of the very important issues at stake in this case, and are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts.”
In a statement, CBS said, “Very important First Amendment issues are at stake here for both
broadcasters and for the American people. And since neither the appellate court nor the Supreme Court has yet dealt with the constitutional questions raised, we are confident that when the constitutional issue is addressed, the rights that protect broadcasters and all citizens will be honored by the court.”
For now, the ruling is a setback to broadcasters because the policy could limit their coverage of live award show and sporting events and potentially allows for fines to be imposed on broadcasters that air fleeting expletives in live telecasts.
The FCC described the court ruling as a victory for families.
“The court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public-interest obligations,” said FCC acting Chairman Michael Copps in a statement. “Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The court’s decision should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”
In his opinion, Justice Scalia wrote, “The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”
However, Jim Dyke, executive director of TV Watch, said in a statement: “When it comes to what kids see on television, the highest authority in the land should be parents, not government. Parents have the information to make informed decisions through television ratings and the tools to enforce those decisions, such as the V-chip, cable and satellite controls. It is a right backed by parents’ ability to control their children’s viewing, whether by using information, technology or old-fashioned rules.”
TV Watch is a national organization that promotes parental controls and individual choices as an alternative to increased government regulation of TV content.
(1:50 p.m.: Added TV Watch statement)


  1. Statement
    William O’Shaughnessy
    Re: Yesterday’s Supreme Court Opinion
    On Fleeting Expletives
    April 29, 2009
    “It appears that the Supreme Court is giving broadcasters ‘Undue Process.’
    Instead of a decision on the constitutionality of the First Amendment, the Court dwells on the intricacies of the Administrative Procedure Act.
    Thus I’m afraid yesterday’s decision is Prologue rather than Epilogue … whose practical effect is to continue the dangerous status quo.
    By focusing on the procedural issue of whether the FCC explained its new approach to ‘fleeting and isolated’ words … the Court delayed the decision everyone should care passionately about: whether the FCC’s Indecency Policy is constitutional.
    Page 2 ->
    As an opinion about what a government agency has to do to change a prior policy, the decision is primarily fodder for lawyers. It is far more interesting if read as a rehearsal for the main event.
    Much more work has to be done on this Free Speech issue of fundamental importance for all Americans.
    The Commission should stay out of the censorship business.”
    William O’Shaughnessy is a former president of the New York State Broadcasters Association and was Chairman of Public Affairs for the National Association of Broadcasters in Washington. He operates two of the last independent stations in the New York area: WVOX and WVIP. He is the author of “AirWAVES” (1999) and “It All Comes Back to Me Now” (2001), collections of his radio commentaries, essays and interviews, published by Fordham University Press. “More Riffs, Rants and Raves” was released in April, 2004. He has just started his fourth volume: “AGAIN! Run That By Me One More Time” and is also presently at work on a study of Broadcasting and the First Amendment.
    Cindy Hall Gallagher

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