May 4, 2009

Say what ... ?

Last week in FCC v. Fox and NBC, the U. S. Supreme Court overturned by a vote of 5-4 a decision by the U. S. Second Circuit Court of Appeals, and upheld the FCC's "fleeting use" policy regarding vulgar expletives. Under that policy, the FCC sanctions broadcast television networks for the the single expression of an expletive during live prime-time television. The Court, answering only the narrow administrative law question before it, held that the policy was not arbitrary and capricious.

The Second Circuit had held that the policy, which has been in place since 2004, was unreasonable under administrative law standards.

The Court declined to address the issue of whether the policy violates the First Amendment, since it was not definitively addressed below.

In a lengthy dissent, Justice Breyer stated that the FCC had failed adequately to explain why it changed from its prior policy of not sanctioning a single, fleeting use of an expletive, and concluded that the FCC's decision was arbitrary, capricious, and an abuse of discretion.

Justice Breyer was joined in his dissent by Justices Stevens and Ginsburg--each of whom also authored a separate dissent--and Justice Souter.

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