U.S. Supreme Court

Supreme Court Upholds ‘Fleeting Expletives’ Ban as Rational Policy


The U.S. Supreme Court has upheld the power of the Federal Communications Commission to ban so-called fleeting expletives in live broadcasts.

At issue is an FCC policy adopted in March 2004 that bans “isolated or fleeting” use of four-letter words during daytime and evening broadcasts. In a 5-4 opinion (PDF), the Supreme Court said the FCC policy switch was not arbitrary or capricious, SCOTUSblog reports.

The majority opinion by Justice Antonin Scalia left open the question of whether the policy could violate the First Amendment in certain instances, according to SCOTUSblog. The 2nd U.S. Circuit Court of Appeals based in New York City will get a chance to consider the constitutional question when the case is remanded, the Associated Press reports.

Whether the FCC policy will chill First Amendment speech in violation of the Constitution “will be determined soon enough, perhaps in this very case,” Scalia wrote. “We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.”

Meanwhile, Scalia said, “any chilled references to excretory and sexual material ‘surely lie at the periphery of First Amendment concern.’ ” The quote was from the Supreme Court’s 1978 decision upholding FCC powers to regulate indecent materials in the case of George Carlin’s seven dirty words routine.

SCOTUSblog notes that Scalia referrs to the “F-word” and the “S-word” in his opinion and does not use the words in their entirety.

The fleeting expletives case, FCC v. FOX TV Stations, concerns four-letter words used in two FOX broadcasts of the Billboard Music Awards, one in 2002 and the other in 2003. In the 2002 show, Cher said she had proved her critics wrong. “So f— ‘em. I still have a job, and they don’t,” she said.

In the 2003 show, the F-word was used by Nicole Richie, star of The Simple Life, a reality show that chronicled Richie and Paris Hilton doing dirty jobs while expending as little effort as possible.

“Why do they even call it ‘The Simple Life?’ ” Richie asked. “Have you ever tried to get cow s— out of a Prada purse? It’s not so f—ing simple.”

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