Legal News

Media-Law Roundup: Wikileaks and the Fleeting Expletive

By Dan Slater

It’s an embarassment of media law riches at the Law Blog this morning. Judge White had a change of heart over his injunction in Wikileaks, while the High Court may re-examine the elusive concept of the fleeting expletive. Let’s get to it.

Right to Receive Information and Ideas: That’s a piece of First Amendment precedent cited by San Francisco federal judge Jeffrey White in his opinion, issued Friday, overturning the permanent injunction issued two weaks ago against WikiLeaks, a whistle-blowers’ site that posts confidential documents. (Click here for past LB coverage. Click here, here and here for Saturday reports from the San Francisco Chron, the LAT and the NYT.) The injunction had been requested by a Swiss bank, Julius Baer, whose documents, purporting to show tax fraud and money-laundering by customers with funds in the Cayman Islands, were displayed on the site.

In dissolving the PI, Judge White focused mostly on the public interest and efficacy prongs of permanent injunction law, but he also expressed doubt that subject matter jurisdiction exists in the case since both parties are aliens: Julius Baer bank is operated in Switzerland and the Caymans, while the owner of the domain name wikileaks.org is a citizen of Australia and a resident of Kenya. (Click here for the six-page order.)

What Constitues An “Indecent Broadcast”? It’s been more than thirty years since the Court has addressed this issue, but it’s set to do so this week. The precise issue before the Court now is described as the problem of “fleeting expletives.” Exhibit A: U2 frontman Bono accepting a 2003 Golden Globes Award: “This is really, really f—ing brilliant.” Exhibit B: Cher responds to her critics while receiving a Billboard Music Award: “So f— ‘em. I still have a job and they don’t.” (Here’s the LAT story.)

After receiving complaints from viewers, the FCC tried to crack down on broadcasters who air “isolated or fleeting expletives” during daytime and early evening hours. Last year, Fox and the other networks sued to block the new policy, and an appeals court in New York put it on hold. Now, the FCC is asking the High Court to clear the way so the crackdown can be enforced. If the justices do take it on, they will have to ponder the meanings of a variety of salty words. Federal law does not provide much guidance. It forbids the broadcasting of “any obscene, indecent or profane language.” Congress has left it to the FCC to decide what that means.

Full post as published by Law Blog - WSJ.com on March 03, 2008 (boomark / email).