“Fleeting Expletives” Policy Struck Down Again

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Good news for expletive-users - the Second Circuit has struck down the FCC's "fleeting expletive" policy, holding that it violates the First Amendment.

As you may recall, this policy was put in place after Bono dropped an F-bomb at the 2003 Golden Globe Awards program.  The policy stated for the first time that a single, non-literal use of an expletive (e.g., "this is really f***ing brilliant") could be actionable.  (For some reason I still feel compelled to edit that term here, although neither that nor any other expletive is edited in the opinion.)  The Second Circuit previously struck this down on administrative-law grounds, but that was reversed by the U.S. Supreme Court.  That court did not address the con-law issues, however, which is what the Second Circuit ruled on today.

The FCC based its argument on the famous Pacifica case involving the late, great George Carlin's "seven dirty words" monologue.  On the other side, the networks argued that technological changes have made the holding of that case – basically, that reasonable restrictions on speech may include a ban on those words during daytime hours – no longer valid.  The court seemed sympathetic to that view, noting that in 1978 broadcast media was more pervasive than it is now.  "Not only did YouTube, Facebook and Twitter not exist, but their founders were either still in diapers or not yet conceived."  (True.  I think the Facebook guy is even shaving now.)  But the court said that until and unless the Supreme Court overrules Pacifica, it is still the law.

Having said that, the court still found that under the existing framework, the "fleeting expletive" policy was too vague, mostly because the FCC does not have clear standards for determining what it considers patently offensive.  "For instance," the court noted, "while the FCC concluded that 'bullshit' in an 'NYPD' episode was patently offensive, it concluded that 'dick' or 'dickhead' were not."  The court cited other examples of such arbitrary line-drawing, as well as examples of the chilling effect the vague standards had on speech.

This may go back up to the Supreme Court, of course, but for now, there should be no punishment for letting a fleeting expletive escape into the world.  Sustained and/or intentional expletive use or other such bullshit, however, of the kind that certain dickheads might be tempted to experiment with, would probably still get you fined.

Link: New York Times
Link: Fox Television Stations, Inc. v. FCC, No. 06-1760 (2d Cir. July 13, 2010) (PDF).