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

This manuscript examines the issue of broadcast profanity regulation in light of the Supreme Court\u27s March 2008 decision to grant certiorari in an appeal from the U.S. Court of Appeals for the Second Circuit. The Second Circuit in 2007 held that the FCC was arbitrary and capricious in its decision to begin prohibiting single profanities, or fleeting expletives, on broadcast television. However, the common law of nuisance and the law of privacy may provide justification for the FCC to regulate broadcast profanity under 18 U.S.C. § 1464. Although some argue that regulating broadcast profanity would induce a chilling effect on broadcast speech or would be futile in light of proliferation of profanity across society, relevant Supreme Court precedents seem to allow prohibition of profanity when it attempts to enter the home. A review is undertaken of the status of profanity in the law by examining the history of nuisance actions for profanity as well as contemporary zones of activity, including schools, the workplace and courtrooms, in which the law allows prohibitions on profanity