Broadcast Profanity and the "Right to Be Let Alone": Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model?

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Congress has empowered the Federal Communications Commission to regulate "obscene, indecent, or profane language" in broadcasting. 1 Obscenity, defined 35 years ago by the U.S. Supreme Court as patently offensive depictions or descriptions of sexual conduct that lack aesthetic or scientific content and appeal to a morbid or prurient interest, enjoys no protection under the Constitution's First Amendment and may not be broadcast over the airwaves at any time. 2 Indecency, meanwhile, has been defined by the FCC as "patently offensive references to excretory and sexual organs and activities"; 3 the First Amendment prohibits the government from completely banning indecent material, but restrictions on the times during which indecency may appear via broadcast airwaves have been approved by the Supreme Court. 4 The most undefined - and, until recently, the most ignored - portion of 18 U.S.C. § 1464 concerns "profane language." Given the Supreme Court's 2008 Term consideration of an appeal in FCC v. Fox Television Stations, Inc., 5 however, that will apparently change. The Court scheduled oral arguments for November 4, 2008.

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