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Friend-of-the-Court Brief to the Supreme Court in FCC v. Fox, the "Fleeting Expletives" Case

(August 8, 2008) - FEPP joined with the ACLU, the Directors Guild of America, the National Federation of Community Broadcasters, and nine other organizations in an amicus curiae brief to the Supreme Court, urging the Court not only to affirm last year's court of appeals decision striking down the Federal Communication Commission's ban on "fleeting expletives" in radio and TV broadcasting, but to clarify that the laws governing the FCC can no longer be interpreted to allow the agency its freewheeling censorship of constitutionally protected speech on the airwaves.

According to the brief, written by FEPP director Marjorie Heins, in the thirty years since the Supreme Court decided FCC v. Pacifica, narrowly permitting censorship of “indecency,” the FCC’s conduct "has been unpredictable, at times sweeping, and highly subjective. The problem intensified in 2004 after the Commission announced that even one 'fleeting expletive' was now, in most circumstances, barred from the airwaves; then applied that new rule to reverse its previous decision that the rock star Bono’s single exclamation ('fucking brilliant!') was enough to make a Golden Globe Awards program unlawfully indecent and profane."

"In the next two years," the brief explains, "the agency made additional arbitrary judgments, finding no indecency in the movie Saving Private Ryan, with its many expletives, but condemning the Martin Scorsese documentary, The Blues, because of vulgar words used by musicians and their music industry colleagues. Thirty years of such discretionary and inconsistent decision-making compels the conclusion that the entire indecency regime is vague, arbitrary, capricious, and overbroad."

The other groups joining the brief are Minnesota Public Radio/American Public Media, PEN American Center, National Coalition Against Censorship, American Federation of Television and Radio Artists, National Alliance for Media Arts and Culture, American Booksellers Foundation for Free Expression, First Amendment Project, Washington Lawyers for the Arts, and New York Civil Liberties Union. Oral argument at the Supreme Court is scheduled for November 4.

To read the brief, click here.

For the ACLU's press release, click here.

For background on the FCC's long and erratic history of indecency enforcement, see Supreme Court Will Review Fleeting Expletives Case, A Huge Victory for Free Speech on the Airwaves, FCC Faces Judicial Challenges to Its Indecency Regime, and What is the Fuss About Janet Jackson's Breast?

Update: On April 28, 2009, the Supreme Court reversed the Court of Appeals, ruling that the FCC's "fleeting expletives" rule is not "arbitrary and capricious" within the meaning of the federal Administrative Procedure Act. The Court did not address the constitutional issue, but instead sent the case back to the Court of Appeals to decide whether the "fleeting expletives" rule violates the First Amendment. See "Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves."

On August 5, 2009, the Second Circuit ordered new briefs to be filed on the First Amendment issue, with oral argument to be set for sometime in November or December. See Fleeting Expletives Redux.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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