FCC v. Fox Television Stations and "Fleeting Expletives"

On August 7, 2008, the ACLU filed a friend-of-the-court brief on behalf of several creative arts, media and free speech organizations criticizing the Federal Communication Commission’s regulation of “indecent speech” as arbitrary, inconsistent, and irreconcilable with core First Amendment values. The brief urges the Supreme Court to uphold a ruling from New York in FCC v. Fox Television Stations, Inc., striking down the FCC’s recent decision to ban even “fleeting expletives” from the airwaves as an unjustified departure from the agency’s longstanding practice.

Contrary to its practice over the last several decades, the FCC recently began leveraging large fines against broadcasting companies for use of even isolated profanities aired on their stations. Last summer, Fox Broadcasting Company asked the U.S. Court of Appeals for the Second Circuit to reverse two such indecency findings against the company, arguing that the FCC had not historically fined broadcasters for fleeting expletives on live television.

The circuit court agreed, ruling that the FCC’s enforcement of indecency findings were “arbitrary and capricious,” and ordered the FCC to provide better justification for its new policy. The Justice Department appealed that ruling to the Supreme Court.

Congress is also considering a fleeting expletives bill, which the ACLU has called unwise, unnecessary, and unconstitutional. The bill would reinstate the FCC’s ability to prohibit the use of any profanity from 6 a.m. to 10 p.m. on broadcast television.