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2nd Circuit's Fleeting Expletive Case Going Back to SCOTUS

By Tanya Roth, Esq. on June 30, 2011 | Last updated on March 21, 2019

What happens when a television station forgets to bleep the swear words? Fox Broadcasting learned the hard way after two incidents in 2002 and 2003 where Cher and Nicole Richie cursed on live television.

After the incident, the Federal Communications Commission enacted a new law, saying that it would fine stations that allowed such incidents to occur. Then, Fox did the expected -- it sued the Federal Communications Commission. The case eventually made it to the Second Circuit. And now, it's with the "Big Nine" on the bench.

The Supreme Court will once again be reviewing the controversial Second Circuit Court of Appeals case next term. This is not the first time the case has been before the Supreme Court, as it had been remanded to the Second Circuit in 2009.

The Federal Communications Commission has long been enforcing rules on what can be broadcast on television, including the limits on airing shows that others might find indecent or offensive.

Earlier this week, SCOTUS granted a petition for certiorari and agreed to hear the case on whether the Federal Communications Commission’s enforcement of its rules against foul language and overtly sexual content violate the Constitution, writes The Los Angeles Times.

In 2010, the Second Circuit Court of Appeals ruled against the FCC’s enforcement of its limitations, citing the rules for vagueness.

But Fox hasn’t been the only station bitten by the FCC’s rules. Earlier this year, the Second Circuit Court of Appeals threw out a fine levied on ABC for an episode “NYPD Blue” where there was an apparent nude scene, applying its ruling from the Fox case.

“Although this case involved scripted nudity,” the ruling said, “the case turns on an application of the same content-based indecency test that Fox found ‘impermissibly vague.’ “

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