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

April 28, 2009 12:00 am

Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States

Sends Case Back To Lower Court For Constitutional Review Of FCC Censorship Powers

CONTACT: (212) 549-2666;

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:

Sign up to be the first to hear about how to take action.

Learn More About the Issues in This Press Release