Tag Archives: FCC v Fox

Reassessing “Decency”

On Monday, June 27th, the Supreme Court announced that upon returning from its summer recess in October, it would revisit the Federal Communication Commission’s rule that allows it to fine broadcasters for “indecency.” Last year, the New York-based 2nd U.S. … Continue reading

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Wardrobe Malfunction Back in Court: An Update

While the display of Janet Jackson’s naked breast and nipple during a 2005 CBS broadcast of the Superbowl may have been fleeting, the legal ramifications stemming from the incident are anything but. Last time we covered this case (here and … Continue reading

Posted in Jennifer Liebman: Author | Tagged , , , | 2 Comments

Fleeting Expletives and the 9-Second Nipple: The Supreme Court Defers to the FCC’s Decision Making in FCC v. Fox & FCC v. CBS

On Tuesday April 28, the Supreme Court handed down a decision in the matter of FCC v. Fox Television Stations, which on its face appears to be hostile to free speech interests.

In a 5-4 decision, the Court sided with the FCC, finding that the agency had not been arbitrary or capricious in its sanctioning of Fox Television Stations, Inc. over two instances of live broadcasts where the F- and S- words were uttered. The FCC had determined that these instances of “fleeting expletives” were indecent, but not protected by the First Amendment— despite a long standing tradition of fleeting instances of indecent content being immune from FCC sanctions.

Every cloud has its silver lining, however. This case’s silver lining is that it will ultimately be fantastic for free expression, in that Justice Antonin Scalia, in writing for the majority, declined to make a decision regarding the constitutionality of the FCC’s new policy regarding fleeting expletives, instead sending the case back to the lower court for further deliberation on this issue. Continue reading

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