Legal Ethics

Justice Alito Says He Should Have Recused Himself in 5-4 ‘Fleeting Expletives’ Decision


Justice Samuel A. Alito Jr. says he should have recused himself in a 2008 case upholding a ban on “fleeting expletives” in television programs.

Alito owned about $2,000 worth of stock in ABC’s parent Walt Disney Co. at the time, the Associated Press reports. He took part in the case, FCC v. Fox Television Stations, even though it involved Federal Communications Commission policies affecting ABC and other networks.

Alito voted with the majority in the 5-4 decision that was against ABC’s interests. A tie vote would have left in place an appeals court ruling favoring the networks. The Supreme Court opinion upheld a 2004 policy switch by the FCC that bans “isolated or fleeting” use of four-letter words during daytime and evening broadcasts.

Alito said aides who check for conflicts missed the ABC and Disney connection, and his participation was an oversight, AP says. “It’s a mistake,” he told the wire service in an interview.

As a result of the stock sale, Alito will be able to participate if the court accepts a new case involving a fine against ABC television stations that aired an NYPD Blue program showing a shot of a woman’s bare buttocks.

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