Supreme Court Upholds 'Fleeting Expletive' Rule for Now

The Supreme Court ruled narrowly Tuesday in favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television, yet stopped short of deciding whether the policy violates the Constitution. In six separate opinions totalling 68 pages, the justices signaled serious concerns about the constitutionality of the Federal Communications Commission's "fleeting expletives" policy, but called on a federal appeals court to weigh whether it violates First Amendment guarantees of free speech. By a 5-4 vote, however, the court did throw out a ruling by the 2nd U.S. Circuit Court of Appeals in New York. That court had found in favor of a Fox Television-led challenge to the FCC policy and had returned the case to the agency for a "reasoned analysis" of its tougher line on indecency. The Commission appealed to the Supreme Court instead. Justice Antonin Scalia, writing for the court, said the FCC policy, adopted in 2004, is "neither arbitrary nor capricious." The FCC changed its long-standing policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

FCC Chairmen Copps called the decision "a big win for America's families. The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves."

Senator John D (Jay) Rockefeller IV (D-WV), Chairman of the U.S. Committee on Commerce, Science and Transportation, said: "I am encouraged by the Supreme Court's decision today to reverse the ruling by the 2nd U.S. Circuit Court of Appeals on regulating broadcast indecency standards. We must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming."

Steven R. Shapiro, Legal Director of the ACLU: "Today's decision, while disappointing, is likely to be only a temporary reprieve for the FCC's claimed authority to ban even fleeting expletives from the airways. While recognizing that the FCC's rule on fleeting expletives represented a change in policy, the Court's 5-4 majority concluded that the new rule was neither arbitrary nor capricious. We disagree. More fundamentally, however, the Court expressly declined to decide whether the ban on fleeting expletives is constitutional until that issue is first addressed by the court of appeals in this case. That constitutional review is long overdue. The First Amendment does not grant government the power to censor speech that it labels indecent based on vague definitions that are inconsistently applied. The FCC's renewed effort to act as national censor cannot survive serious constitutional scrutiny."

Parents Television Council President Tim Winter: "Today's ruling by the Supreme Court is an incredible victory for families. The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free. We agree with the Court that the FCC's broadcast decency enforcement policy is 'entirely rational'. And we agree with the Court's finding that the FCC was not 'arbitrary' or 'capricious' in its finding that those words were indecent on the public airwaves when children are in the audience. Broadcasters must abide by the terms of their licenses. They must not air indecent material before 10:00 p.m. - the hours when children are most likely to be in the viewing audience. We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families.We implore the broadcast networks to abide by today's Court's ruling rather than to pursue a path of attempted obstruction with countless legal maneuverings. And we encourage the FCC to use today's opinion to break the indecency complaint logjam, and rule on the merits of the tens of thousands of indecency complaints currently awaiting review at the Commission."

Jonathan Rintels, Executive Director of the Center for Creative Voices in Media: "Polls consistently show that the vast majority of Americans, including parents of young children, prefer to decide for themselves what to watch on TV, rather than have the government decide for them. The First Amendment gives them that right. We are disappointed that the Supreme Court upheld the overly-expansive content restrictions imposed by the Bush Era FCC that continue to put at risk the very kinds of broadcast television that many parents want their children to watch, including high quality PBS documentaries, histories, and dramas. We are pleased, however, that the Supreme Court remanded this proceeding to a lower court to address the constitutionality of these restrictions, and we look forward to participating."

Andrew Jay Schwartzman, President and CEO of the Media Access Project (MAP): "Today's decision is extremely disappointing. We remain hopeful that the FCC's restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the Court chose not to confront today. As Justice Breyer's dissent points out, the chilling effect of the FCC's new policies are especially severe on smaller independent and public broadcasters. Writers, artists and directors on the front lines of the First Amendment face continuing pressure to err on the side of the blandness."