Posted by: cinnamonlaw | May 14, 2009

The Story of the “Fleeting Expletive”

The Radio Act of 1927 (the precursor to the Communications Act of 1934) provided that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communications.”  At that time, AM radio was the only means of “broadcasting” available.  FM radio, television, cable TV, satellite TV and satellite radio and the myriad of programming choices they provide were not part of the equation when that law was enacted.

Defining what language should be prohibited from broadcast  has been a challenge.  The late George Carlin started a firestorm in the 1970s when his “Seven Dirty Words” monologue was aired over a radio station owned by the Pacifica Foundation.   The FCC issued a determination that the language in Carlin’s monologue was indecent, and any future broadcasts of that kind of language would be subject to sanctions.  Pacifica took legal action, claiming the First Amendment protected Carlin’s monologue, but the Supreme Court disagreed and sided with the FCC.  Congress clarified that the prohibition against indecent speech applied only between the hours of 6 a.m. and 10 p.m.  TheFCC really only pursued action against broadcasters who used such language in a willful or repeated manner inside the forbidden window when children were most likely to be listening.

After receiving complaints about certain award show broadcasts where celebrities were caught on camera uttering a single expletive, the Commission changed its policy and decided that even isolated single word utterances (i.e., “fleeting expletives”) would be actionable  and subject to Commission sanctions.  Broadcasters headed to court once again to challenge the FCC’s position.  The case ended up in the Supreme Court as FCC v. Fox Television Stations.

The “big elephant in the room” as Justice Ginsberg referred to it during oral argument, was the question of whether the Commission’s sanctioning of “fleeting expletives” was prohibited by the freedom of speech provided in the First Amendment.  The Supreme Court’s decision left that issue unanswered for now.  Instead, the decision concluded that the FCC’s decision to change its policy to begin the sanctioning of “fleeting expletives” was not “arbitrary and capricious” because the FCC had provided sufficient justification for its change in policy.

The case was then remaneded to the Second Circuit Court where the question of the constitutionality of the FCC’s new policy of sanctioning feelting expletives in consistent with the First Amendment.

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  1. I’m not an expert, but I’ll go with the “willful and repeated.” Punishing fleeting expletives may stifle artistic expression such as song lyrics. In the 1960’s, The Rolling Stones had to sing, “Let’s spend some time together” rather than, “Let’s spend the night together” on The Ed Sullivan Show. By extension, the same thing could happen now.

    Also, while watching a baseball game, a batter who struck out could clearly be heard saying one of Mr. Carlin’s seven words. Should the TV station be fined for that?

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