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"Fleeting Expletives" Redux: Court of Appeals Sets New Briefing Schedule

(August 5, 2009) - The U.S. Court of Appeals for the Second Circuit today ordered new briefs to be filed in Fox Television v. FCC, the lawsuit challenging the Federal Communications Commission's 2004 ban - in most circumstances - on even one "fleeting expletive" on radio or broadcast television. This case, begun in 2006, thus comes one step closer to a final decision that might possibly end the FCC's 30-plus years of censoring the airwaves.

In 2007, a three-judge panel of the Second Circuit condemned the FCC's decision to ban even one utterance of the words "fuck" or "shit," or any of their derivatives, on the ground that the new policy - a direct reversal of several decades of previous agency practice - was "arbitrary and capricious," in violation of federal administrative law.

The ban, combined with fines in the 6-figure range, was having an especially chiling effect on documentaries and other programming produced by nonprofit and community radio and TV stations. And because the FCC reserved for itself the subjective power to decide when these words would not be punished because they were essential to some artistic or educational purpose, the court found that the agency's reasoning - primarily, the supposed need to protect children from the "first blow" of even one vulgar word - made no sense.

As one example of the FCC's arbitrary and capricious decisionmaking, Judge Pooler contrasted the fines meted out to a community station for airing Martin Scorsese's documentary about blues music with the pass given to ABC-TV's broadcast of the expletive-ridden movie, "Saving Private Ryan." The raunchy langugage was justified in the fictional movie, according to the FCC, but not in the documentary.

The Second Circuit opinion by Judge Rosemary Pooler also strongly suggested (in "dicta" - that is, not part of the formal holding of the case) that whatever the original justification for the indecency regime, broadcasting is no longer different enough from other media to justify government censorship of constitutionally protected and often valuable expression on radio and television.

Earlier this year, though, the Supreme Court reversed the court of appeals, ruling that the FCC's about-face on the meaning of "indecency" was not arbitrary and capricious within the meaning of administrative law. The Court said nothing directly about whether it was constitutional within the meaning of the First Amendment, but five justices at least intimated that they thought the fleeting expletives rule is unconstitutional. (See Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves.) The case was sent back to the Second Circuit, which will most likely turn its earlier "dicta" into an official holding that the fleeting expletives rule violates the First Amendment.

The big question is whether, when the case gets back to the Supreme Court, it will finally put an end to 30-plus years of shifting and unpredictable government censorship by holding that the entire indecency regime - not just the fleeting expletives rule - is unconstitutional. As Judge Pooler said today, quoting Justice Ruth Bader Ginsburg's dissent in the Supreme Court case, “There is no way to hide the long shadow the First Amendment casts over what the Commission has done.”

Judge Pooler ordered new briefs supporting the broadcast networks to be filed by September 16, with the government and its supporters to file briefs by October 28. Oral argument will take place sometime in November or December.

Update: On July 13, 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague, thereby failing to put broadcasters on notice of what is banned, and chilling free expression. See "FCC's Censorship of Indecency is Unconstitutional."

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

For FEPP's original brief in the Second Circuit, on behalf of 20 media arts and free-expression organizations, click here. For more background on the FCC, indecency, and the fleeting expletives rule, see What is the Fuss About Janet Jackson's Breast? and A Huge Victory for Free Speech on the Airwaves.


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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