SCOTUS to Hear Fleeting Expletives

October 9, 2008
A case involving a few spontaneously uttered expletives on broadcast television will be heard by the U.S. Supreme Court on Election Day, Nov. 4. Oral arguments for FCC vs. Fox Television Stations will start on that Tuesday. The justices will decide whether or not broadcasters should be censured and/or fined for “fleeting expletives.”

The case arose from a couple of incidents in 2002 and 2003, when Cher and Nicole Richie let fly a few curse words during the Billboard Music Awards on Fox. Then two years ago, the FCC censured Fox after having initially allowing an F-word from Bono to slide, then later reversing itself.

The legal framework for the censures was established 29 years ago in the Supreme Court’s Pacifica ruling. Because broadcast signals were “uniquely pervasive,” the court said the federal government had a right to regulate content. Consequently, programs airing between 6 a.m. and 10 p.m. that describe or depict “sexual or excretory organs or activities,” that is patently offensive by community standards and lacks artistic or educational merit is subject to FCC fines.

In June, the Second Court of Appeals in New York determined that the FCC hadn’t adequately made its case against Fox, essentially proving that an uttered expletive describes a sex act or excretory activity. The Solicitor General’s Office disagreed, and will argue the case against Fox.

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