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.
