FCC, Federal Government

Petitioner Wants FCC to Ref "Redskins" Debate

Petition against a broadcast license renewal cites offensive nature of “Redskins” name as basis for denial. Should the FCC really be involved with this?

By Steve Lovelady  
on

Ed note: This post originally appeared on CommLawBlog.

Petition against a broadcast license renewal cites offensive nature of “Redskins” name as basis for denial. Should the FCC really be involved with this?

For years there’s been a steady drumbeat for the owners of the Washington, D.C. National Football League team to change the team’s name to something other than “the Redskins”. The contention is that the word “Redskins” is – in the eyes of both American Indians and non-Indians – an offensive ethnic slur. (In response, the team — which has used that name for more than 80 years – says that it’s a tribute to American Indians’ strength and courage, i.e., the antithesis of a slur.)

And now the FCC has been invited to blow the whistle, throw a flag, and rule the use of the term to be a license-ending infraction.

The Redskins-as-ethnic-slur controversy is not new, but it has seemed to gain momentum over the last couple of years, perhaps fueled by aggressive efforts to bring governmental authority to bear. For example, while a number of American Indians have waged an extended battle to get the U.S. Patent and Trademark Office to cancel the team’s registered trademarks, those efforts had been generally unsuccessful until mid-2014.

The response from the Redskins camp has been unequivocal: in a 2013 USA Today interview, the team’s owner, Dan Snyder, said that he will never change the name, adding famously that the interviewer could capitalize the word “NEVER”.

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That hasn’t stopped various prominent folks from urging a change.

Former FCC Chairman Reed Hundt published an op-ed piece in the Washington Post along those lines. Separately, on behalf of himself, two former commissioners and several media law activists (one a former 8th Floor official, another a current 8th Floor official), Hundt sent a letter directly to Snyder with the same message. In Hundt’s view, broadcasting the word “Redskin” is the same as broadcasting indecent language. (Hundt’s opinion was not shared by all former FCC officials, as evidenced by a letter to the Post from a former Commission General Counsel.)

Even current Chairman Wheeler and President Obama have been asked to weigh in. (Both deplored the use of the Redskins name while – unlike Hundt – steering diplomatically away from suggesting that the government has any business telling Snyder what to do.)

And then there’s John F. Banzhaf III. A law professor at George Washington University, Banzhaf has a long history of legal activism, including deep involvement in fights against cigarette advertising (by suing tobacco companies), childhood obesity (by suing fast food restaurant owners) and sex discrimination. (On the latter point, he has reportedly referred to himself as the “father of potty parity” because of his efforts to insure equitable provision of public restroom facilities for men and women.)
Last year, Banzhaf declared that broadcasters should stop using the “R-word” (as he referred to it). In a letter to the Washington Post, he proposed opposing TV and radio station license renewal applications as a means to stop the “unnecessary” use by broadcasters of the offensive word.

And now Banzhaf has made good on his threat by filing with the FCC a formal objection opposing the license renewal application of a D.C.-area radio station, WWXX(FM). Oh, by the way, that station just happens to be controlled by Dan Snyder.

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Banzhaf’s objections run a wide gamut. He claims that broadcast of that word (Banzhaf also uses a sanitized version: “R*dskins”) has an adverse impact on impressionable young Indian and non-Indian children. He suggests that its use “constitutes hate speech” and might cause “hate crimes against Indians”. Banzhaf argues at length why he believes the broadcast of the word constitutes profanity. (One issue that Banzhaf does not address is why his petition was filed over three years after the deadline for objections to the station’s license renewal application.)

So Banzhaf’s petition is certainly full of sound and fury. But what about legal merit? Since lots of stations presumably refer routinely to “the Redskins” in the course of, e.g., their sports reporting (not to mention their reporting of this Redskins-as-ethnic-slur controversy), it is conceivable that they, too, could be targeted. Is there any reason for broadcasters to be concerned about losing their licenses?

As far as we can tell, the answer is clearly: No. There are no current laws or FCC regulations or policies which prohibit broadcast of the word “Redskins”, or any other racial epithet for that matter. (Of course, the lack of controlling rules or precedent does not prevent the filing of objections – as demonstrated by the Banzhaf pleading. While defending against such objections can impose unpleasant costs in time, money and energy, it is highly unlikely that the mere broadcast of the term “Redskins” could cause a broadcast license to be terminated.)

In his petition Banzhaf relies on 18 USC Section 1464, which makes it a criminal offense to broadcast obscene, indecent or profane language on radio or TV. The problem there is that, as inconsistent as the FCC’s enforcement of that provision has been over the last several decades, Section 1464 has never been held to proscribe racial or ethnic epithets. “Obscenity”, of course, is a term of art defined by the Supreme Court (in the 1973 Miller decision). It relates exclusively to the most egregious depictions of sexual content. As defined by the Commission, “indecency” involves sexual or excretory organs or functions. Since the term “Redskins” does not have any per se sexual or excretory connotations at all, much less any offensive ones, it would be impossible to stretch the terms “obscene” or “indecent” to include “Redskins”.

As for “profanity”, in 2004, the Commission announced a broad and unprecedented definition of “profanity” which might arguably have encompassed racial or ethnic slurs. Stripped of any limitation to sexual or excretory connotation, “profanity” was said to refer to material “so grossly offensive to members of the public who actually hear it as to amount to a nuisance”. The Commission suggested in particular that profanity would include “certain of those personally reviling epithets naturally tending to provoke violent resentment”. As vague as that definition was, it might have been applied to ethnic and racial slurs.

But two years later, in 2006, the Commission expressly pared down its definition. It imposed on “profanity” a presumption that “regulation of profane language will be limited to the universe of words that are sexual or excretory in nature or are derived from such terms”. Again, “Redskins” does not fit into that universe. And to make its intentions unmistakably clear, the Commission added:

Although we recognize that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans, we intend to avoid extending the bounds of profanity to reach such language given constitutional considerations.

So proscription of the broadcast of racial and religious epithets has already been expressly taken off the table by the FCC. While he may welcome the challenge, Banzhaf appears to be swimming upstream when he argues that “Redskins” is obscene, indecent or profane so as to warrant denial of a license renewal.

This situation highlights the difficulties posed when some, but not all, happen to be offended by certain language. While those opposed to the use of the term “Redskins” sincerely believe that it is an egregious racial slur, others quite clearly – and equally sincerely – do not. When this type of dispute arises, it may be tempting to bring the government in to resolve it. But is that really a good idea? Isn’t the First Amendment there to prevent the government from declaring that some speech is “correct” and other speech not so much?

This is most assuredly not to say that those who are offended by “Redskins” – or any other term – should just get over it. The First Amendment is intended to keep the government out of the speech control business so that the non-governmental marketplace of ideas can thrive. The very public debate that has been ongoing is precisely what the First Amendment is designed to foster: free and frank exchanges providing each side the opportunity to convince the other (and those not yet aligned with either side) of the correctness of its view.

That marketplace of ideas can also spill over into the actual economic marketplace: the Redskins are a business (as is the NFL, for that matter), and various strategies are available to bring pressure in the marketplace to induce changes in behavior viewed as unacceptable.

And let’s not forget that the First Amendment equally protects the rights of broadcasters who prefer – because of their own consciences or in response to their audience’s or their sponsors’ preferences – simply not to use the term “Redskins”. There is ample precedent for such self-restraint: how often, after all, do you hear such terms as “nigger” or “faggot” or “kike” on the airwaves? Such terms are not prohibited by the FCC, but self-restraint – perhaps influenced by enlightened self-interest – has imposed its own de facto prohibition.

So let the public debate continue. But let’s keep the FCC out of it.

[Blogmeister’s Update: Steve is not alone in his suggestion that the FCC is not the correct venue for addressing the propriety of the name “Redskins”. Among others, Professor Eugene Volokh – a prominent legal blogger and UCLA law professor who teaches (wait for it) free speech law and a First Amendment Amicus Brief Clinic (among other things) – has raised similar constitutional questions about Prof. Banzhaf’s petition.]

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