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First Amendment Should Protect Fleeting Expletives on TV, Media Institute and Thomas Jefferson Center Tell Second Circuit

FOR RELEASE: September 16, 2009

Contact:Richard T. Kaplar
The Media Institute


Arlington, Va., Sept. 16, 2009 – The Media Institute joined The Thomas Jefferson Center for the Protection of Free Expression today in urging a federal appeals court to extend First Amendment protection to fleeting profanity in broadcast programming.

The groups filed a friend-of-the-court brief with the U.S. Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. Federal Communications Commission.  The case involves celebrities uttering spontaneous expletives during live music awards shows.

The court should consider three basic principles in deciding this case, the groups said:  "First, the expression at issue here is fully protected by the First Amendment, since it falls within none of the exceptions the Supreme Court has recognized and consistently applied in free speech and free press cases.

"Second, the standards which the Commission applied to these respondents far exceed the limited scope of the Supreme Court's prior tolerance for regulation, even in the special circumstances of licensed broadcasting. 

"Third, any vital and pertinent interests of our society may be effectively protected by standards that comport with the rigorous safeguards of the First Amendment."  

The case had been remanded back to the Second Circuit by the U.S. Supreme Court, which narrowly overturned the appellate court's earlier ruling that the FCC had acted arbitrarily and capriciously in tightening its indecency policy, thereby violating the Administrative Procedure Act. The Supreme Court stopped short of considering the constitutional question now before the Second Circuit.

The Supreme Court historically has viewed the regulation of broadcast indecency and profanity as very limited in scope, the First Amendment groups said.  Even the FCC itself had shared that view prior to its change in policy, they added.  A Second Circuit decision in line with the groups' recommendation would have the effect of finding the FCC's new and stricter indecency policy unconstitutional.

The Media Institute is at  The Thomas Jefferson Center, based in Charlottesville, Va., is at