F.C.C. Set To Ban The Word “Redskins” From The Airwaves?
The F.C.C. will be considering a petition to ban the word "Redskins" from the airwaves.
An legal activist has filed a petition with the Federal Communications Commission requesting that the commission ban the use of the word “Redskins” on broadcast television and radio similar to the way that it bans certain other words, and the Chairman of the F.C.C. is saying that the commission will “consider” the petition:
WASHINGTON, Sept 30 (Reuters) – The Federal Communications Commission is considering whether to punish broadcasters for using the moniker of the Washington NFL team, the Redskins, a word many consider a slur to Native Americans, the agency’s chairman indicated on Tuesday.
The FCC, which enforces broadcast indecency violations, has received a petition from legal activist John Banzhaf III, asking that regulators strip local radio station WWXX-FM of its broadcasting license when it comes up for renewal for using the name “Redskins.”
Banzhaf says the word is racist, derogatory, profane and hateful, making its use “akin to broadcasting obscenity.”
“We’ll be looking at that petition, we will be dealing with that issue on the merits and we’ll be responding accordingly,” FCC Chairman Tom Wheeler told reporters.
“There are a lot of names and descriptions that were used over time that are inappropriate today. And I think the name that is attributed to the Washington football club is one of those,” Wheeler added.
The FCC could formally deem use of the team name to be indecent, and thus impose a de facto ban on it on over-the-air television and radio.
Despite protests, vigorous lobbying and even intervention from President Barack Obama, team owner Daniel Snyder has vowed not to change the name of his National Football League team.
Some TV football analysts, including CBS’ Phil Simms and Super Bowl-winning coach Tony Dungy, have said they will no longer use the term Redskins. On the other side, former Chicago Bears coach Mike Ditka, a Hall of Famer, says the issue is “so stupid it’s appalling.”
As a preliminary matter, it’s worth noting that this is not the F.C.C. taking this issue up on its own. Instead, a man known to be something of a legal activist has filed a petition with the agency under its normal procedures and Wheeler is merely stating that the agency will consider the petition under those procedures. That could mean that this matter eventually gets to the full commission for a hearing where both sides, as well as what would likely be a whole host of interested parties, would present their evidence and arguments for and against expanding the Commission’s definition to “indecency” to cover something as seemingly innocuous as the name of a football team, which would essentially mean that local and national broadcasters would be forced to engage in the rather silly practice of finding ways to ignore the fact that the Redskins are in fact called the Redskins. It could also, mean, however, that the petition would be dismissed at the staff level before it even gets to a full hearing of any kind because it doesn’t raise an issue worthy of consideration, or it could be disposed of in any other number of ways. Wheeler’s second, comment, of course, raises the prospect that he, at least, envisions this matter getting before the entire commission necessary, but given the fact that he’s already expressed an opinion on the matter I have to wonder if he shouldn’t be forced to recuse himself from any hearings on the matter.
Even if this petition get before the full F.C.C., though, there are several reasons why it seems unlikely that the result would be the one that Banzhaf wants:
Under current law, broadcasters face a fine of up to $325,000 per incident deemed indecent and could lose their licenses to operate.
But Georgetown Law School professor Andrew Jay Schwartzman notes that the definition is narrow.
“The statute addresses indecency and profanity,” he said. “The FCC has consistently said that indecency and profanity refer to sexual and excretory matters, and nothing more. It would require a redefinition of the term and an extraordinary stretch to find the use of a word that has multiple meanings could possibly be deemed indecent. It’s not going to happen.”
The Supreme Court in the 1978 FCC v. Pacifica Foundation decision — which dealt with a broadcast of the famous George Carlin comedy bit “Filthy Words” — found that the government has a legitimate interest in protecting children from foul language.
While obscene speech has no constitutional protection, indecent speech does. The FCC can fine broadcasters or pull their licenses for airing indecent speech, but only if it is aired before 10 p.m. or after 6 a.m. Broadcasting faces more regulation than cable channels or newspapers because TV and radio stations originally received their airwaves for free under the condition that they use them in the public interest.
There’s already opposition to any FCC move — even from inside the agency.
On Wednesday, Republican FCC Commissioner Ajit Pai told CNBC he would oppose any agency move.
“The FCC chairman has suggested that the agency will take a look at that petition and consider what to do with it,” he said. “For my own part, as a supporter of the First Amendment, I don’t think the government should ban the use of the Washington Redskins team name from the airwaves. But we will see what the agency proposes to do in the near future.”
Eugene Volokh, meanwhile, explores the legal issues surrounding this petition and any future F.C.C. action, and concludes that a ban on the use of the word “Redskins” would be unconstitutional:
[W]hether or not “Redskins” is “inappropriate,” racist, or insulting, I think the FCC is barred by the First Amendment from forbidding it, or from considering its use as a factor in deciding whether to cancel a broadcast license. In the controversial FCC v. Pacifica Foundation decision (which both Justice Thomas and Justice Ginsburg have recently argued should be overturned), the Court did uphold a restriction on particular vulgarities (the famous “seven dirty words”). But the premise of the lead opinion was that those words were not being restricted because of the opinions or ideas that they supposedly convey:
The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content — or even to the fact that it satirized contemporary attitudes about four-letter words — First Amendment protection might be required.
The premise of the criticism of “Redskins” is precisely that it embodies a racist, demeaning message about American Indians (whether or not this is intended by those who use it), and that it offends because of this racist meaning. It thus is the speaker’s imputed opinion and supposed “political content” of the word that gives offense. A ban on such words isn’t just content-based, but viewpoint-based (since it is precisely the racist viewpoint underlying the term that makes it offensive), and is thus outside the Pacifica rule. And in R.A.V. v. City of St. Paul (1992), the Court stated more clearly what the Pacifica majority strongly applied: that viewpoint discrimination is generally unconstitutional even where some degree of content discrimination might be (see, e.g., footnote 6, and pp. 390-92).
To be sure, I take it that a big part of the argument against “Redskins” is that it doesn’t really convey much of ideological significance, but is merely an offensive epithet. But the epithet — like the racist epithets that R.A.V.held couldn’t be censored in viewpoint-based ways — is offensive (to those who are offended by it in this context) precisely because of its allegedly racist ideology, and the call to suppress it stems precisely from the perception that it conveys this racist ideology. So whatever the force of Pacifica may be as to vulgarities (and I agree with Justices Thomas and Ginsburg that Pacifica ought to be overruled), I don’t think it applies to “Redskins.”
Volokh is spot-on here. The mere fact that someone find a word offensive is not, in and of itself, grounds for a government entity like the F.C.C. to ban its use on the airwaves. This would especially seem to be more true given the fact that the word in question isn’t being used gratuitously, but the state a fact, the name of the N.F.L. franchise that plays in Washington, D.C. Given that, a rule banning use of the name Redskins would effectively be censoring the news based on a specific viewpoint, which if anything is even more egregious than what happeded in R.A.V. or Pacifica. Additionally, adopting such a rule would create numerous logistical and other problems for broadcasters. For example, the radio station that the petition is targeted at regularly hosts call-in shows regarding national and local sports. How is such a station supposed to control what members of the public say when the call in, or athletes and analysts who are interviewed as guests? True, there is already some policing of shows like this for certain words, but “bleeping” out every reference to the word “Redskins” in a given phone call is going to make the entire conversation sound ridiculous. Additionally, if the F.C.C. does what the petition requests, what are the television networks supposed to do with team material that includes the logo, the team name, or both? Even if one accepts the argument that the word is “indecent” in some way, the rule that Banzhaf wants would quite simply be an unenforceable and unwarranted intrusion into the operation of the press, as well as being a plainly unconstitutional attempt to ban speech based solely on its content.
In many ways, this proposed F.C.C. action is as troubling as the recent decision by the Patent and Trademarks Office to revoke the Redskins’ trademarks notwithstanding the fact they were granted more than 50 years ago. As I argued at that time, even if one concedes the argument that the Redskins name is offensive, there is something quite troubling about the government attempting to insert its heavy hand into the debate by making threats against the property rights and Constitutional rights of the team and, now, radio and television broadcasters. In the PTO case, at least, one could make the argument that the fact that Trademarks are largely a creation of the law means that the government can set the terms upon which those trademarks are granted. Of course, the fact that in that case the trademarks had already been granted in the past arguably means that the PTO is engaging an unconstitution taking of private property without compensation. At the very least, though, there is some basis in law for the authority being asserted there. In this case, though, we would be looking at what is beyond a doubt a violation of the First Amendment rights of broadcasters and on-air talent, and the threat that those parties could be fined for using the supposedly “offensive” word. There’s really no justification for that at all, and Volokh is correct in his conclusion that such a rule would likely be ruled unconstitutional by a Federal Court.
If members of the public want to convince the Redskins the change their name, they can use the same First Amendment that protects the broadcasters that would be impacted by this potential F.C.C. action to try to pressure them to do so. Bringing the government into the argument, though, is completely wrong regardless of what you think about the name and whether it ought to be changed.
Hear, hear!
I don’t believe the FCC should have power to ban any word.
James had a post recently about Wiki eliminating The Federalists which turned out to be like one guy requesting they pull the article on thefederalist.com blog, and it isn’t going to be pulled. This is one activist and nothing’s going to happen. Just click bait. (But that is Doug’s job, and well played, sir. Especially as we may get a fun thread argument going.)
@gVOR08:
It’s a petition to a government agency, the head of which has said that it will be considered, and who has already expressed an opinion on the merits of the petition.
This is nothing like the Wikipedia story.
I would presume, based upon these rules, that Django Unchained or anything with Sameul L. Jackson will never be broadcast on television by any of the networks.
FOX News is “racist, derogatory, profane and hateful, making its
usevery existence “akin to broadcasting obscenity.”FCC Chairman Tom Wheeler is considering my petition.
I would say that if the role of Government is to protect individuals in their pursuit of Life, Liberty, and Happiness… where did I read that again???…then this is indeed an argument where Government has a place. Of course that’s a very idealistic view…and in the real world the SCOTUS has decided that money is the sole deterministic factor when it comes to rights…so Banzhaf is wasting his time and ours.
@C. Clavin:
You conveniently forget the First Amendment. Government should not be banning speech.
Has the FCC any of the rap songs with the N-word in it from being played over the airwaves? If not this would make it clear that it is exclusively unconstitutional viewpoint discrimination to ban Redskins while allowing the generally accepted-as-bad N-word on the air without comment.
@michael reynolds: “I don’t believe the FCC should have power to ban any word.”
With the possible exception of “Comcast.”
@michael reynolds:
Replace Redskin with Ni&&er and get back to me.
I tend to think this is silly…but I won the lottery…I was born a white hetero male in the US of A.
I am not a Native American corralled on some poorer-than-dirt reservation and treated like sub-human-scum by the course of history.
To me it’s silly…but I am at least aware that I lack the proper perspective to judge.
When I watched the woman on the Daily Show talk about walking down the street in DC and being barraged by “Redskins”…it made sense to me.
And like I said…if not the Government…then who? The free market? It doesn’t ever work that way. If it did we wouldn’t have the CRA.
http://www.mediaite.com/tv/daily-show-airs-controversial-confrontation-between-redskins-fans-native-americans/
The FCC shouldn’t be banning any words, but the resistance of people to admitting that ‘Redskins’ is racist is puzzling. Well, not puzzling: it’s pretty clear that people are trying to defend something else beyond merely the racist name of a terrible NFL team. We just can’t talk about this something else.
@Doug Mataconis:
C’mon…the world isn’t so pure…every right is abridged in some way.
And the 1st doesn’t mention the right to broadcast hate over the public airways.
I’m not an attorney…but from WIKIPedia:
If I were a Native American I think I might feel disparaged and intimidated.
I’m not…so it’s hard to say. But if Hobby Lobby can claim their religious freedoms are compromised…then these folks can claim they’re being subject to prejudicial action.
@C. Clavin: Django Unchained used Ni&&er 115 times, yet there were no protests, no calls to ban the movie, and no one asked the FCC to declare it indecent.
@wr: And “mime.”
@Jack:
I haven’t seen Django unchained on Broadcast TV.
@C. Clavin:
To my knowledge, the FCC doesn’t ban hate speech from the air.
@C. Clavin:
“Hate speech” is still constitutionally protected and people can generally not be prosecuted for using such language unless it is accompanied by something such as a physical assault.
If racist slurs are banned then what are all of the rap radio stations going to broadcast? Surely everyone can see that this is a “slippery slope” that should be avoided.
Apparently I’m wrong…treating minorities like $hit is a protected right.
Carry on.
@C. Clavin:
It’s called Freedom of Speech.
And, again, nothing is preventing people from trying to persuade others that the name should be changed. What is not permitted is using the heavy hand of the state to try to accomplish that, or, failing that, to punish the Redskins and sports and news broadcasters.
@superdestroyer:
And you wouldn’t have anything to say.
@C. Clavin: You are confusing morality and legality.
Of course defending the right of someone to say something that turns your stomach is one of the the hardest things about Democracy.
And so in that spirit…I just went to the DMV and got my new vanity plates.
They read; NIGGER.
Damn…I just typed out ni&&er in a comment…and OTB put me directly into moderation.
What a surprise…and from such principled freedom of speech advocates.
Actions, my friends, speak louder than words.
@michael reynolds: so politically correct they are actually dictating. Goodbye free speech in a democratic country
This is beyond ridiculous.
My moderated comment with the word, that OTB censored, altered:
@C. Clavin: I got away with SEGRIN only because nobody at the DMV caught it as Stuff Eating GRIN. If they’d gotten it, wouldn’t have been allowed.
@C. Clavin:
I was not aware OTB was the Federal Government.
@C. Clavin:I’m only a 1st Amendment absolutist when it comes to the government’s regulation of private citizens. Private entities like OTB have an absolute right to set individual policies.
@James Joyner:
Oh c’mon now James…you either believe in free speech or you don’t.
You censor speech…the DMV censors speech. Why? Because governments, private entities, and other groups impose censorship, or create conditions in which people self-censor, for the safety and well-being of others. No state in the union will issue a plate that says ni&&er. You can take it to the SCOTUS and win the fight…sure. But that doesn’t negate the very good reason it is done. And there will still be 49 state governments that won’t give you that plate.
@C. Clavin:
Actually I think the market has this covered. I doubt Snyder can hold out another six months. I despise the notion of bureaucrats moderating free speech. It’s a dumb overreaction. This is a matter for mores not laws.
By the way, I’m a Jew and would also oppose banning kike.
@michael reynolds:
Kike shouldn’t be banned, but if I was Jewish, I would get mighty tired of having people explain to me that their love of the First Amendment allows them to think the Washington Kikes is not an offensive team name.
One bottom line is that the majority of people who think that Redskins is not offensive are idiots. The other bottom line is that there’s no excuse for me to say these people are idiots and then to pretend that it was certainly not intended to offend.
The 1st Amendment allows for free speech, but people who use it as a shield to duck responsibility for their words are not benefited by the 1st Amendment.
@michael reynolds:
I agree for the most part…it’s certainly not smart Government. At the same time I have limited faith in the market.
Native Americans, whose problems were mostly created by the Government to begin with, have been troubled by this issue for decades…not months. Or at least some activists have been.
I wouldn’t be surprised if Snyder weathers this. Money talks.
In other news, the New England Patriots filed suit against the LA Kings hockey team citing among other things “hurtful assumptions of superiority” and “revival of class warfare.” Claimed damages include the inflation adjusted value of obscene tea profits from 1770 to 1776 as of 2014. In a counter, whistleblower suit, the Kings notified the EPA of prior waste disposal violations near Boston.
Eric Holder said the Justice Department is taking the matter seriously.
@C. Clavin:
If I write a proposed Op-Ed for The New York Times and they choose not to publish it because the content violates their standards, that is not censorship of speech. If the government tells the Times that it cannot publish my Op-Ed because it is offensive, that is censorship and a violation of the First Amendment.
The concept of “Freedom of Speech” does not apply to private entities like the Times and OTB.
@Doug Mataconis:
Yes, yes, yes…you are free to censor…the Government is not. I get that.
But you’re hiding behind semantics.
You have a policy against using the term ni&&er for a reason.
My point is that that very same reasoning should apply to Redskin.
To native Americans…Redskin = Ni&&er.
Like I said…to me it’s not even a big deal. Whether I watch the Redskins or not won’t be based on their name. But I’m not a Native American.
@C. Clavin:
Then you should have a conversation with James and Doug about the use of that word on this site. I don’t see how that helps your argument that the government should be censoring words.
@C. Clavin: So, I should be able to petition the FCC and/or can file suit against Fritolay because the product Cracker Jacks offends me?
@Neil Hudelson:
The Government already does.
@Jack: You most certainly can petition the FCC and file suit. I’d give long odds against either succeeding, but you’re certainly free to try.
@Jack:
Are you a kernel of caramel flavored popcorn…for whom Cracker Jacks is a racist slur?
The total ban of the word “redskins” would also hurt cooking shows (redskin potatoes, referred to as redskins). An unintended consequence. Or is someone protesting potatoes too?
@C. Clavin:
In this case yes. If public pressure increases and it appears to be increasing then networks and newspapers will stop using it. The FCC doesn’t ban other racist terms, yet you don’t hear them so much on network tv and certainly not by people representing those networks and papers.
@Jack:
Do you understand what the FCC does or what this petition is attempting to do?
There are an awful lot of popular movies than have lots of f^@k, sh!t, and the other 5 words in them. If Django Unchained makes it to network TV I’m pretty sure some of the vocabulary will change.
@Jack:
Of course you should be able to, and of course you can.
Now, whether you’ll succeed is another matter entirely, but you are in fact already entirely free to petition the government for a redress of grievances,even silly grievances.
@C. Clavin:
Women have also been oppressed in this society, and the word “bitch” certainly offends them, shall we ban that, too? Ignoring the various morons up-thread, there really is an argument to be made that one thing leads to another.
It’s not government’s business to tell writers what to write, and that’s what this is. The United States government is telling writers how to write TV scripts. I feel the same way about all manner of offensive words.
@michael reynolds:
I guess I’m just feeling contrarian…because while I do agree with you…bitch has multiple meanings…Redskin, just one.
You’re right, of course. Government shouldn’t be in the business of banning words.
If I’m not mistaken were certain words not banned for different time slots at one time?
Pretty sure this petition is just another attempt to raise awareness.
@C. Clavin:
Again, I don’t think the name should be banned.
At the same time, ‘Redskins’ as a name of a team has nothing to do anything relating to the word.
For example, if you don’t want to encounter the word you can avoid slanted pro-American history, just as you wanted to avoid reading about the genocide of Native Americans you could avoid reading books that are not approved by Fox News History Team. Or if you could avoid people who use the word or talk about genocide, etc. But saying “If you don’t want to be offended by what you think is racist you shouldn’t follow the NFL” is kind of different.
No one goes to NFL for free speech. They go for football and beer, and when free speech popped up they should have dropped the name in a second. The name means nothing.
Let me clarify: Redskins is an offensive, obnoxious, racist term and people defending the term really need to cut the b.s. and come down to reality. It is inexcusable. The arguments for keeping it are 100% nonsense. It’s 2014, time to get over this.
That’s different than the question of whether it should be banned by the government. It should absolutely be avoided by ESPN, by the networks, and no network should retaliate against on-air talent that refuse to utter the word.
@michael reynolds:
Nothing like a wide reaching generality. You are throwing Redskin potatoes (referred to as Redskins, so the “s” doesn’t matter). I know that isn’t what you meant, but a simple ban would prohibit rebroadcast of many Food Network shows. As stupid as folks protesting “niggardly.” So a simple profanity filter will also ban potatoes.
I have cousins that are card-carrying Native Americans (means they don’t pay state gas tax if they buy at a tribal owned gas station, Tribal One Pass – really). They are not offended by “redskins.” So there is division on this issue in Native America. Not so simple.
@RGardner:
Baloney. Your argument carries as much weight as saying it’s okay for you to say “ni**er” because some rapper did. It’s absurd and childish. Though not as childish as pretending this is about potatoes.
We have free speech. With that right come responsibilities, among which is not to unnecessarily antagonize people, especially people who are the survivors of the ethnic cleansing and genocide our ancestors perpetrated and from which we still profit to this day.
Pro tip: Repeating what you hear on Fox only works with other people who watch Fox. Out here in reality those arguments invariably fail.
Nothing like a red herring of Fox News. I don’t watch cable news (except CNBC for financial coverage during the trading day). I have no idea if Fox News has made similar points, but you obviously do know. But I do know of unintended consequences of blanket bans (I can’t give blood due to risk of mad cow disease even though I lived in an area of Europe with no mad cow).
BTW, I fully agree with your first posting in this thread
I think on this we agree. {Cue George Carlin.]
@michael reynolds:
I was just talking about this to a friend the other day (we live in the DC metro area) and predicted that it would be changed sometime next spring, before the draft, but after the super bowl.
Snyder is only fighting this in order to curry favor among the die-hards here in DC. you know, the people that actually spend money on the product. so he’ll dig in his heels and take a bunch of negative press because he has had a horrible reputation around town since he purchased the team and needed all the positive press he can get from fans for decades of incompetence. My thought was that he’d wait until sponsors start dropping or the League forces him to change the name. Then he’ll announce how understanding he’s become and see where he was wrong (while of course saying locally that he did everything in his power to keep the name)
and whenever he does change the name, all the superfans will buy all the old redskins gear and will buy all the new team name gear as well.
“An interesting ESPN video last month on what a name change would cost Snyder provided vital information that ought to appeal to him. Ronald Goodstein, a professor of marketing at Georgetown University, said that it would cost between $15 million and $20 million to do everything a name change would entail. “You’re asking him to give up 10 to 20 percent of his value in the firm just to do that.” But according to Forbes Media executive editor Mike Ozanian, a name change holds nothing but promise for the Washington team. “I think the amount of revenue, in terms of selling merchandise, team license products and additional sponsorships, would far exceed those costs,” he said. “The name change could add $10 to $15 million per year in revenue.” Ozanian estimates the team rakes in about $400 million annually and he values Snyder’s team at $1.7 billion, making it the NFL’s third-most valuable.”
http://www.washingtonpost.com/blogs/post-partisan/wp/2014/09/18/could-ditching-redskins-take-heat-off-the-nfl/
Of course, if roger goodell gets fired for the domestic violence/ray rice coverup, then whoever the new commish is could collaborate with the owners in order to force snyders hand. IE: “IT’S TIME TO CLEAN UP THE LEAGUE”
IM offended by Democrats.
Let’s ban them from the airwaves, and from public places.
Hey, it works for leftists and Muslims, right?
@C. Clavin: I count three. The Washington football team, a potato, and a native american slur.
@rodney dill:
1 and 3 are the same, so you really have two. I have never heard anyone call red potatoes redskins. They are called red potatoes or sometimes red skinned potatoes. A quick google search doesn’t turn it up either. Nowhere in the first three pages of the google search is the term redskins, so I’m going to say your second of two possible meanings is dubious. The term is a racist slur period. I don’t think that means the FCC should ban it and the liklihood of them doing so is minimal, but your argument is very weak.