Fleeting expletive

A fleeting expletive is a non-scripted verbal profanity or obscenity expressed and broadcast during a live television broadcast or radio broadcast. The term appears primarily in discussions of United States broadcasting law.

Notable examples

In chronological order:

• While accepting her Lifetime Achievement Award at the 2002 Billboard Music Awards, Cher said "fuck 'em" regarding those she felt had criticized her throughout her career.^[1]
• During the January 2003 Golden Globe Awards, Bono accepted an award exclaiming, "This is really, really, fucking brilliant."
• At the December 2003 Billboard Music Awards, Nicole Richie said, "Have you ever tried to get cowshit out of a Prada purse? It's not so fucking simple."
• Janet Jackson's wardrobe malfunction in the halftime show of Super Bowl XXXVIII (January 2004) is an example of the visual indecency type of fleeting expletive.^[2]
  • A $550,000 indecency fine by the U.S. Federal Communications Commission (FCC) was overturned. The court determined that the FCC "acted arbitrarily and capriciously" in fining CBS for the less than one-second broadcast of a woman's breast.^[3]
• On an episode of Big Brother 10 (2008), there was a heated argument with lots of muted expletives; however, one went through when someone said, "Memphis was in the fucking room."
• Jenny Slate said "and I fucking love you for that" during a parody of a talk show by biker women. It was her first appearances as a player on Saturday Night Live.^[4]
• On March 23, 2010, U.S. Vice President Joe Biden, commenting on the passage of the Patient Protection and Affordable Care Act during a live press conference, said to U.S. President Barack Obama, "This is a big fucking deal." The comment was picked up by CNN news microphones.^[5]
• On November 19, 2011, during a live taping of ESPN's College GameDay at the University of Houston, college football analyst Lee Corso said, "Ah, fuck it" before he put on the headwear of Shasta, the University of Houston Cougars' mascot, demonstrating his prediction that the Cougars would beat the Mustangs of Southern Methodist University.^[6][7] Corso's co-hosts Kirk Herbstreit and Chris Fowler and their guest speaker Carl Lewis laughed hysterically in response to his use of the expletive,^[8][9] for which Corso later apologized.^[10]
• On December 18, 2011, during a CBS broadcast of the Cincinnati Bengals at the St. Louis Rams, St. Louis guard Harvey Dahl protested referee Jerome Boger's holding call against him by saying, "I know you didn't just call me for holding. That's not fuckin' holding!" It was heard over the stadium PA system through Boger's open microphone, and aired. CBS commentator Dan Dierdorf apologized for the slip, and Dahl was assessed a second penalty for unsportsmanlike conduct.^[11]
• On November 4, 2012, during the Dolphins-Colts game at Lucas Oil Stadium in Indianapolis, referee Tony Corrente loudly said, “God damn it!” CBS play-by-play announcer Kevin Harlan apologized on-air because Corrente’s illegal language slipped past the censors.^[12] Corrente himself would apologize, but not before the National Football League fined him a game check.^[13]

U.S. Supreme Court case

On March 17, 2008, the United States Supreme Court agreed to hear, in September 2008, a case on whether the Federal Communications Commission (FCC) is allowed to regulate the use of fleeting expletives on television broadcasts.^{[14][15][16][17]} The parties in the case are the Fox Broadcasting Company (supported by other television networks including ABC, CBS, and NBC) and the FCC.^{[14][15][16][17]} A federal appeals court had ruled in the favor of the networks; the Supreme Court has agreed to hear the FCC's appeal.^{[14][15][16][17]}

In a ruling issued April 28, 2009, the United States Supreme Court ruled to uphold the Federal Communications Commission (FCC) fleeting expletive rule.^[18] The court reversed a lower court ruling in the 2nd U.S. Circuit Court of Appeals in New York which found in favor of Fox Television that the FCC had not properly followed procedures in creating the rule. In the 5-4 ruling by Justice Antonin Scalia, "the court did not definitively settle the First Amendment implications of allowing a federal agency to censor broadcasts."^[19] Instead the court suggested the First Amendment issue should be raised in a Federal Appeals Court.

U.S. Second Circuit Court of Appeals

In a ruling announced July 13, 2010, the U.S. Second Circuit Court of Appeals struck down the FCC indecency policy on fleeting expletives. Calling it "unconstitutionally vague", the unanimous three judge panel found the policy could infringe upon the constitutionally protected First Amendment freedom of speech. According to the panel, the policy "created a chilling effect that goes far beyond the fleeting expletives at issue here", in part due to a lack of guidance on what content is considered offensive.^[20]

Fox released a statement stating, “We have always felt that the government’s position on fleeting expletives was unconstitutional,” and, “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through."^[21]

FCC Chairman Julius Genachowski indicated the commission will be “reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”^[21]

U.S. Supreme Court Ruling 2012

The Federal Communication Commission (F.C.C.) was dealt another legal blow when the U.S. Supreme Court ruled against it in throwing out fines and sanctions levied against broadcasters who violated the F.C.C. policy governing curse words and nudity on broadcast television.

The justices did not directly address the wider issue of constitutionality of the F.C.C.'s indecency policy and indicated the F.C.C. is free to modify existing policy under its regulatory mandate.^[22]

See also

• Wardrobe malfunction, for fleeting nudity

References

Further reading

• Chidester, Treasa (Fall 2004). "What the #$%& is Happening on Television? Indecency in Broadcasting" (PDF). CommLaw Conspectus 13 (1): 135–67. 
• Schneider, Matthew S. (November 2007). "Silenced: The Search for a Legally Accountable Censor and Why Sanitization of the Broadcast Airwaves Is Monopolization" (PDF). Cardozo Law Review 29 (2): 891–925. 

External links

• Playful Commentary on June 2007 Decision by Federals Appeals Court