The Volokh Conspiracy
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Would the FCC fine broadcaster for statement that Carly Fiorina "cut [Trump's] balls off"?
On Wednesday's Fox News "The Kelly File" program, National Review's Rich Lowry said:
Last debate, let's be honest, Carly cut his balls off with the precision of a surgeon and he knows it.
Trump responded:
Incompetent @RichLowry lost it tonight on @FoxNews. He should not be allowed on TV and the FCC should fine him!
- Donald J. Trump (@realDonaldTrump) September 24, 2015
(Presumably Trump meant that the FCC should fine the station on which Lowry appeared.) But, as others have pointed out, the FCC's authority to regulate vulgarity extends only to over-the-air broadcasting. Fox News Channel, as I understand it, is solely on cable, and on cable you can say much worse than "balls" (as much cable entertainment has shown us).
But beyond that, this sort of use of "balls" in this context is likely not sanctionable by the FCC. The FCC's "indecency" rules are notoriously vague (though they were upheld against a First Amendment challenged by a 5-4 vote in FCC v. Pacifica Foundation (1978)). But this sort of isolated, non-sexually-themed, and not highly vulgar figurative usage is unlikely to qualify as "indecent." Indeed, even a more sexual-innuendo-filled reference to "balls" was found not to be indecent in In re Application of Saga Communications of Ark. (2008):
On May 15, 2004, between 2 and 4 p.m., KEGI(FM) aired a … live remote broadcast [including this advertisement]:
Announcer One: It's 10,000 T's and T's Weekend on Z-100 Rocks!
Announcer Two: Last night, I grabbed a handful of Hooter's T's … and I got thrown out of the restaurant!
Announcer One: Not those T's… Hooter's Golf Tees (sound effect: Fore!). You know, the kind you put your balls on!
Announcer Two: Huh?
Announcer One: Never mind.
Announcer Three: It's a T's and T's Weekend! That's the all-new Z-100 10th anniversary T-shirt and a handful of Hooter's
Golf Tees.Announcer Two: Oh, now I get it.
Announcer One: From the station that knows where to put our balls!
Announcer Two: On the Hooter's Tees.
… Similarly, during the live remote broadcast on May 16, 2004, between the hours of 1 and 4 p.m., KEGI(FM) aired an advertisement with the following material: "Get a limited edition 10th anniversary T-shirt along with a handful of Hooter's Tees … Golf tees, that is, because everybody knows that the best thing to rest your balls on is a big set of Hooter's … golf tees." [American Heritage Media] argues that this material violates the restriction on indecent material on broadcast stations between the hours of 6 a.m. and 10 p.m….
Neither of the allegedly indecent broadcasts described above meets the "patently offensive" portion of the Commission's indecency standard. To the extent that the references to "T's" or "Tees" allude to female breasts, the references are not sufficiently graphic or explicit to be patently offensive under contemporary community standards for the broadcast medium. Similarly, to the extent that the references to "balls" allude to testicles, the references are not sufficiently graphic or explicit to be patently offensive under contemporary community standards for the broadcast medium. In the context of the advertisements cited in the Informal Objection, the use of such double entendres does not render the material patently offensive under contemporary community standards.
Get more sexual than that on over-the-air broadcasting - or using harsher vulgarities than that - and you might find yourself in trouble with the FCC. But given that even sexual innuendos like in Saga Communications are "not sufficiently graphic or explicit to be patently offensive under contemporary community standards for the broadcast medium," "Last debate, let's be honest, Carly cut his balls off with the precision of a surgeon and he knows it" is permissible, too.
