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.
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Notable examples
In chronological order:
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. The parties in the case are the Fox Broadcasting Company (supported by other television networks including ABC, CBS, and NBC) and the FCC. A federal appeals court had ruled in the favor of the networks; the Supreme Court has agreed to hear the FCC's appeal.
In a ruling issued April 28, 2009, the United States Supreme Court ruled to uphold the Federal Communications Commission (FCC) fleeting expletive rule. 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." 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.
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."
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.”
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.