/ April 30, 2009

Scalia for the Majority: FCC "Dirty Words" Ban Not "Arbitrary and Capricious"

In a 5-4 decision, the Supreme Court ruled that the ban on using “bad words” is not “arbitrary and capricious” as a matter of law.  However, it left open the question as to whether the ban could violate the First Amendment in certain situations.   That issue was kicked back to the Second Circuit.

Federal law prohibits the broadcasting of “any…indecent…language” (18 U.S.C. sec. 1464).  In 2004, the FCC declared for the first time that use of the “F-Word” or the “S-Word “(Scalia used the euphemisms in his opinion and we use them here) could be actionably indecent.  Broadcasters say this rule goes too far.

Writing for the majority, Justice Scalia wrote that that Supreme Court is “one of final review” and the Court would not “rush to judgment without a lower court opinion.”  In her dissent, Justice Ginsburg wrote that “there is no way to hide the long shadow the First Amendment casts over what the Commission has done.  Today’s decision has done nothing to diminish that shadow.”

Read the opinion here.

Click here to read our November 3 posting about the oral argument on this case.

Source: SCOTUS Blog

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