Will Supremes weigh in on fleeting expletives?


We don’t know if the Supreme Court will agree to hear an FCC appeal of the Second Circuit court ruling in favor of Fox Broadcasting Network on a case involving sudden unexpected eruptions of profanity on FBC live programming. But we do know that the DOJ has asked it to do so.

TVBR observation: Back when the FCC seemed to have a shred of common sense left, broadcasters were not in jeopardy of getting fined a penny if an inadvertent expletive was uttered near one of their live mics. As long as the breach of decorum was not deliberate and/or repeated, nor intended to shock, pander or titillate, then the infraction was excused. The FCC has been trying to make up a brand new no slip-up policy without going through the usual rulemaking procedure allowing for public comment, and at the same time, the potential price for a slip-up has sky-rocketed to a budget-busting 350K. Talk about chilling free speech. The effect of the FCC ruling may well be to render the practice of live broadcast as a risk affordable by only the most well-to-do large market broadcast outlets. We might add that the fleeting expletive case is but a side show to the real question of what is and is not indecent. Do you think the court might find the entire body of indecency regulation arbitrary and capricious? We do — a good constitutional attorney should have no problem shredding it to tatters. Ideally, the Supreme Court should tell the DOJ/FCC that the Second Circuit got it right and refuse the case. If it decides to hear it, we hope it is to clarify the matter on the side of broadcasters and the First Amendment.