Outside the Beltway

F.C.C. Rejects Petition To Declare ‘Redskins’ An Obscene Word

Not surprisingly, the F.C.C. has rejected a petition to ban the word "Redskins" from the airwaves.

Doug Mataconis · Saturday, December 20, 2014 · 11 comments

Earlier this year, a petition filed by George Washington University Law Professor John Banzhaf asked the Federal Communications Commission to decline to renew the broadcast license of  WWXX-FM, the local sports talk radio station which also broadcasts the radio feed for Washington Redskins games, on the grounds that the term “Redskins” was obscene.  As most observers who had opined on the subject at the time expected, the Commission has rejected the petition:

The Federal Communications Commission has dismissed an attempt to block the broadcast license renewal of a radio station that belongs to Washington Redskins owner Dan Snyder.

A George Washington University law professor and three Native Americans had filed the petition against WWXX (94.3 FM), arguing that the station’s frequent use of the term “Redskins” was a racial slur that qualifies as hate speech.

The commission rejected all of their arguments, leaving little room for interpretation and perhaps offering a forecast of how it will rule on similar cases in California.

“Licensees have broad discretion — based on their right to free speech — to choose, in good faith, the programming they believe serves the needs and interests of their communities,” the decision read. “This holds true even if the material broadcast is insulting to a particular minority or ethnic group in a station’s community.”

An attorney for the station, Andrew G. McBride, said in a statement that the ruling should end the petitioners’ “attempt to use the license renewal process to coerce broadcasters into not using the team’s official name.”

 ”The FCC’s written opinion makes crystal clear that use of the word Redskins on the airwaves does not violate any FCC rules, is not obscenity, profanity, or hate speech and is fully protected by the First Amendment,” he wrote. “The FCC has made clear that the complainant’s threat is now an empty one.”

Still, GW Professor John Banzhaf III said he will continue to support the efforts in Los Angeles, where activists have filed petitions seeking to block license renewals for a pair of TV stations that frequently use the Redskins name.

“Obviously I’m not happy, but we kind of expected this. This is only round one of one battle,” Banzhaf said. “It often takes some time for new legal theories to develop.”

(…)

Attorneys for the station filed a response in October, calling the petitioners’ arguments “meritless.”

“In fact, the Objections amount to nothing more than a frivolous attempt to goad the Commission into banning the team name of Washington, D.C.’s NFL franchise from the nation’s airwaves,” the filing stated. “While there is, in fact, a public debate over the use of the name ‘Redskins’ in association with the team, the Commission cannot appropriately serve as the arbiter of that dispute. No government agency could ban the use of the word ‘Redskins’ any more than it could ban the objectors’ viewpoint that the word is offensive and should not be used.”

Eugene Volokh highlighted the important parts of the F.C.C.’s ruling:

Profanity. The Commission defined profanity in 2006 as “language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Due to “the sensitive First Amendment implications in this area,” the Commission limited its regulation of profane language to “the universe of words that are sexual or excretory in nature or are derived from such terms.” However, even that limited definition was invalidated by the Court of Appeals for the Second Circuit. [Petitioner John F. Banzhaf III] argues that the word “Redskins” constitutes profanity. He does not allege, however, that the word is sexual or excretory in nature or derived from terms that are. Instead, he asserts that the word “Redskins” is racially derogatory. While the Commission has “recognize[d] that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans,” it made clear its intent “to avoid extending the bounds of profanity to reach such language given constitutional considerations.” Accordingly, we reject the argument that the word “Redskins” falls within the Commission’s definition of profanity.

Public interest, convenience, and necessity. Banzhaf states that “repeated and unnecessary exposure” to the word “Redskins” causes “psychological harm, not only to Indian and non-Indian children, but also to Indian adults.” He asserts that, for these reasons, it is contrary to the mandate that broadcasters operate in the public interest, convenience and necessity for the Station to broadcast the word in its coverage of Washington’s professional football team….

The First Amendment and Section 326 [of the Communications Act] prohibit the Commission from censoring program material or interfering with broadcasters’ free speech rights. In view of this, the Commission has stated that it will not take “adverse action on a license renewal application based only upon the subjective determination of a listener or group of listeners as to what constitutes appropriate programming.” It has recognized that: “Licensees have broad discretion — based on their right to free speech — to choose, in good faith, the programming they believe serves the needs and interests of their communities. This holds true even if the material broadcast is insulting to a particular minority or ethnic group in a station’s community.” Indeed, the Commission has held that “if there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable and congenial.” …

Hate speech. Banzhaf asserts that the term “Redskins” constitutes hate speech and incites violence against Indians. There are no provisions in the Act or the Commission’s rules banning hate speech. We have recognized that, under the principles enunciated in Brandenburg v. Ohio, the Commission can take enforcement action based on broadcast speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” We will not do so, however, unless a local court of competent jurisdiction has determined that the speech at issue meets the Brandenburgtest. Here, Banzhaf has not proffered any evidence that a court has found broadcasting the word “Redskins” to meet the Brandenburg test….

In his own brief comments on the F.C.C.’s decision, Volokh says that he believes the Commission got the decision right in this case, and I completely agree. As I said when news of this petition first became public back in October, the mere fact that someone finds some kind of speech offensive, or some word, to be offensive, is not sufficient grounds for the F.C.C. to ban it from the airwaves. In part, as the excerpt above itself makes clear, the Commission has only been given the statutory authority to regulate the content of broadcasting in a very limited manner, and even the Commissions authority in those cases seems to be in doubt given recent Supreme Court jurisprudence on the First Amendment. As the Commission’s response makes clear, the word “Redskins” does not fall within the boundaries of that authority. More importantly, there is no good reason why it should fall within the bounds of that authority. For better or worse, the name of the N.F.L. franchise located in Washington, D.C. — well, technically Landover, Maryland with a training facility in Northern Virginia but that’s beside the point — is the “Washington Redskins.” This is a fact, and it has been a fact for the past eighty years or so. Punishing a sports news station for using the word and reporting the fact that the Redskins won or lost a particular game, more likely lost given how the current season is going, would be an absurd and pointless use of the Commission’s authority to regulate content, which as I said is questionable at best given the present state of First Amendment law.

None of this precludes an individual broadcast entity or publication from adopting a policy of not using the term “Redskins” on its own, of course, but there is no justification for the government getting involved in the manner that Banzhaf and the other crusaders involved in trying to get the Commission to take similar action via other petitions have attempted. Even conceding for the sake of argument that the term “Redskins” is offensive to some people, that in and of itself is not a good enough reason for the government to ban it from the airwaves, or to threaten the property rights of radio and television broadcasters who might choose to allow its use. Numerous times, the Supreme Court has ruled that the mere fact that speech is “offensive” is not sufficient to support a law banning speech or punishing its use in public. Indeed, one could make the argument that part of the First Amendment is about allowing the airing or ideas that others might find offensive. That includes the name of a football team, which is, as I said above, a fact that seems like something that a sports news station should be reporting on, especially one that is located in the area where the team plays. The Commission was right to reject this absurd petition, and hopefully will do the same with the other pending matters on this issue.

Here’s the Commissions decision:

FCC Redskins Decision by Doug Mataconis