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FCC chairman pans common-sense ruling on ‘fleeting expletives’
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

The FCC just doesn't get it when it comes to regulating free speech, darn it!

Freedom of speech doesn't automatically mean people can say every "bleeping" thing that comes into their heads, especially if they are on broadcast television. Remember, this is an industry that took decades to permit sitcom characters to use — or even refer to — the toilet.

Most Americans will recall the “flap over the flap” — Janet Jackson's infamous, milli-second, partial breast exposure at the 2004 Super Bowl. Fewer likely remember the brouhaha when rock star and activist Bono, accepting a 2003 Golden Globe award, blurted out, "This is really, really f***ing brilliant. Really, really great."

But only devoted celeb-watchers may remember that, in 2002 and 2003, Cher and Nicole Richie each uttered an expletive during music-awards programs. The FCC noticed, though, and held that Fox Broadcasting had thereby violated its indecency rules.

Earlier this month, the 2nd U.S. Circuit Court of Appeals rejected, 2-1, the agency's decision regarding the Cher and Richie profanities. But the court didn’t stop there: It called the agency's rules "arbitrary and capricious" and raised the question of whether the entire enforcement effort was simply outdated in an era of new screening technology and cable and satellite programming.

The FCC and its supporters now warn us all to be braced for a torrent of profanity and sleaze that will pour forth from television broadcasters and into plasma screens and picture tubes all across the nation.

“Overnight, the court called into question nearly 30 years of FCC precedents and regulations aimed at protecting children and families from obscene language and indecent programming during family hours,” said Sen. John D. Rockefeller, D-W.Va.

FCC Chairman Kevin Martin said, “The court even says the commission is ‘divorced from reality,’” in a June 4 written statement. “It is the New York court, not the commission, that is divorced from reality in concluding that the word ‘f***’ does not invoke a sexual connotation.”

“If ever there was an appropriate time for commission action, this was it,” Martin said.  “If we can't prohibit the use of the words ‘f***’ and ‘s***’ during prime time, Hollywood will be able to say anything they want, whenever they want.”

There were no asterisks in Commissioner Martin’s statement, by the way. The offending words were spelled out and repeatedly used, perhaps for emphasis. But Martin’s note itself was a kind of backhanded recognition that there is a time and a place — a context — in which such language is perhaps tolerable, at least accurate and even at times appropriate. The court ruling noted that “in recent times, even the top leaders of our country have used variants of these expletives.” (One news report said Vice President Cheney’s office had no comment.)

In reality, all the court did was add a bit of free-speech common sense to the measuring stick used by the FCC to evaluate indecency on live television programming. The ruling neither opens a profanity spigot nor unleashes an indecency torrent.

Speech found to be obscene is, by definition, illegal and outside the realm of protected speech. And the FCC still is empowered by law to act against scripted or planned indecent references to sexual or excretory organs or activities during hours when children are likely to be listening, defined as 6 a.m. to 10 p.m. It just cannot, for now, easily punish broadcasters for “fleeting expletives.”

Of course, the real power over what’s said on television doesn’t rest with the FCC or with a panel of judges: The real deal is you, and me, and our remote controls and Tivo machines. The FCC can fine. But we can decide what to watch and what not to watch, now or next year, regardless of the time of day.

We have not heard the last of this semantic food fight over the occasional f-word or of government rule vs. individual choice. The FCC could appeal to the Supreme Court. CBS has appealed, in a different case in a different court, a $550,000 fine by the FCC for the Super Bowl incident. And even after the Jackson action is settled, there will be the FCC’s newest initiative to expand its reach, seeking to have Congress empower it to act against violent TV images and programs.

Some in Congress would even have bureaucratic oversight extended into the thus-far private, contractual agreement between cable and satellite subscribers and providers — in effect, splicing a government filter into the cable that figuratively runs from HBO to you.

One good thing about “fleeting expletives” — unlike government regulations, which tend not only to remain in force but also expand their scope — is that such passing remarks are just that: Here one moment, gone in another.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. E-mail:


2nd Circuit: FCC's policy on accidental expletives is arbitrary

Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

Government must act to curb TV violence, says Sen. Rockefeller
Fellow senator expresses concern about free-speech implications of such a measure, possibility that Congress might pass law that would be invalidated in court. 06.27.07

Senate panel moves to restore FCC indecency policy
In bid to counteract 2nd Circuit ruling, committee approves bill that would allow agency to fine television, radio broadcasters for airing profanities, even if they are fleeting references. 07.20.07

3rd Circuit to study 'wardrobe malfunction'
Panel to decide whether 2004 Super Bowl halftime incident was indecent or fleeting, accidental glitch that shouldn't be punished. 09.11.07

CBS attorney: Network was careful with Super Bowl halftime show
FCC lawyer tells 3rd Circuit that CBS was indifferent to risk that 'a highly sexualized performance' might cross the line. 09.11.07

Government seeks high court review of broadcast-indecency ruling
2nd Circuit said it was 'skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.' 09.27.07


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