The Volokh Conspiracy

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No, the FCC may not ban the use of "Redskins" on radio and TV broadcasting


Prof. John Banzhaf has filed a petition asking the FCC to revoke the broadcast license of stations that use the word "Redskins." Some "longtime participants in the FCC regulatory process"—including former FCC chair Reed Hundt—have likewise argued that,

It is impermissible under law that the FCC would condone, or that broadcasters would use, obscene pornographic language on live television. This medium uses government owned airwaves in exchange for an understanding that it will promote the public interest. Similarly, it is inappropriate for broadcasters to use racial epithets as part of normal, everyday reporting.

Current FCC chair Tim Wheeler has recently said (here I quote CNBC that,

We'll be looking at that [Banzhaf] petition, we will be dealing with that issue on the merits and we'll be responding accordingly….

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.

But whether 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).

And the FCC has in the past agreed that it may not restrict broadcast speech on the grounds of its supposed racism. For instance, in In re Fox Television Stations, Inc. (1993), the FCC ruled:

Similarly, we cannot deny grant of a waiver based on allegations, even if true, that Murdoch will practice, as he purportedly did under his former ownership of the Post, racist and inflammatory journalism. That is because we are proscribed from interfering with a newspaper's exercise of freedom of expression. Near v. Minnesota, 283 U.S. 697 (1931). Even if such allegations were directed at WNYW, a broadcast station over whose content we do have a limited role, see, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 747 (1978), both the First Amendment and Section 326 of the Act forbid us from censoring subject matter and opinions relating to religious beliefs, race or national background, regardless of how offensive they may be, e.g., Thaddeus L. Kowalski, 46 F.C.C.2d 124 (1974), aff'd sub nom. Polish American Congress v. FCC, 520 F.2d 1248 (7th Cir.1975) [holding that broadcast of "Polack jokes" couldn't be restricted -EV], cert. denied, 424 U.S. 927 (1976), and from curbing expression, outside narrowly defined classes of speech, such as indecency, that does not involve "a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

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."

UPDATE: For a follow-up press release from Prof. Banzhaf, and my thoughts about what it says about FCC power to control broadcasting content, see this post.

FURTHER UPDATE: Steve Lovelady (CommLawBlog) notes that a 2006 FCC decision expressly declined to bar racial epithets: "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." And a precedent it cites (Complaint of Julian Bond, Atlanta NAACP, Letter, 69 FCC 2d 943 (Broadcast Bur. 1978)) expressly rejected the claim that "nigger" should be prohibited by analogy to the "seven dirty words."