Supreme Court Rules FCC Ban on Fleeting Expletives Not 'Arbitrary,' Doesn't Rule on Constitutionality

For Immediate Release


Rachel Myers, (212) 549-2689 or 2666;

Supreme Court Rules FCC Ban on Fleeting Expletives Not 'Arbitrary,' Doesn't Rule on Constitutionality

Sends Case Back to Lower Court for Constitutional Review of FCC Censorship Powers

NEW YORK - By a 5-4 decision, the Supreme Court ruled today that the Federal
Communications Commission had not acted arbitrarily when it changed a
long-standing policy and implemented a new ban on even "fleeting
expletives" from the airwaves. The Court explicitly declined to decide
whether the new rule is constitutional, and sent that issue back to the
lower courts for their review.

In August 2008, the American Civil Liberties Union filed a friend-of-the-court brief in the case, FCC v. Fox Television Stations, Inc.,
on behalf of several creative arts, media and free speech organizations
arguing that the FCC's regulation of "indecent speech" is
irreconcilable with core First Amendment values.

The following can be attributed to 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."

The ACLU's brief is online at:

More information about the case is available online at:


The American Civil Liberties Union (ACLU) conserves America's original civic values working in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in the United States by the Constitution and the Bill of Rights.

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