Supreme Court Allows FCC to Ban Even 'Fleeting Expletives'

April 28, 2009— -- A divided Supreme Court said today that the FCC had been "entirely rational" when it changed its policy to ban even the fleeting use of an expletive on broadcast television, but declined to rule on whether the ban violated the broadcasters' constitutional rights.

The case came about after celebrities such as Cher and Bono uttered so-called "fleeting expletives" on national television. The FCC changed its policy to include such utterances within the definition of indecent material.

Broadcast networks, including ABC, had argued that the FCC was wrong to change its policy and that such a change would chill broadcasters' protected speech.

In the past, the FCC had allowed broadcasters some isolated incidents of "fleeting expletives," but after celebrity slip-ups, it changed its policy.

Writing for the 5-4 majority, Justice Antonin Scalia hinted that it was "conceivable" that in the future the FCC may "cause some broadcasters to avoid certain language that is beyond the Commission's reach under the Constitution," but he wrote "we decline to address the Constitutional questions at this time." The case was sent back to the lower court to take a first stab at the issue.

Justices Anthony Kennedy and Clarence Thomas indicated in their concurring opinions that on the larger question they might side with the more liberal members of the court and find the FCC ban unconstitutional.

"If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances," wrote Justice Kennedy.

Justice Steven Breyer, writing in dissent, said that the FCC had failed to "adequately" explain why it changed its indecency policy from permitting a single "fleeting use" of an expletive to a policy that made no such exception.