The Volokh Conspiracy

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On the chilling effect, from one of the chillers


Prof. John Banzhaf passed along this press release for me to post, and I'm very glad to do so. The press release gleefully embracing the chilling effect created by the FCC's statements—"regulat[ion] by a 'raised eyebrow.'" It stresses that broadcasters "fearful of delays or even failure to renew licenses" are pressured to restrict speech "without the need for formal actions," partly because such delay "can hang like a Sword of Damocles" over the station and keep it from being sold or from borrowing money. The whole press release is, intentionally or not, a sharp indictment of the FCC's power to control the content of speech (power that, if it can be used as to "Redskins," can be used as to many other things as well, and indeed has been used as to other things). If the FCC enacts such a rule and I were litigating the challenge to the rule, this quote from the lawyer who filed the petition would play a prominent role in my briefs.

FCC to Ban "Redskins"—By Raised Eyebrow?
Extraordinary Statements By FCC Majority Trigger Predictions

The National Journal said "FCC Mulls Banning Redskins Name," Reuters reported "FCC Considering Move to Ban NFL Redskins Team Name," SportingNews asserted "FCC Considers Ban of 'Redskins' on TV, Radio," and Yahoo Sports went even further, saying "FCC Considering Ban on Redskins Nickname, Punishment for Announcers."

But FCC regulation of "Redskins" may already have begun, suggests public interest law professor John Banzhaf, whose formal legal petition to deny the renewal of one of team owner Dan Snyder's radio stations triggered extraordinary statements by a majority of the commissioners at the agency.

Washington insiders know that the FCC often regulates by a "raised eyebrow"; publicly telegraphing its concerns, and counting on broadcasters—fearful of delays or even failure to renew licenses—to take appropriate steps without the need for formal agency action.

This happens because even a temporary delay in the renewal of a broadcast license can harm the station's credit, limit its ability to be sold or traded, and in general can hang like a Sword of Damocles over it for months or even years. As the FCC has coyly admitted: "Several FCC Chairmen and commissioners have been successful in using the 'raised eyebrow' as an informal means of drawing attention to problems in industry practices."

"It's unusual for a sitting commissioner to opine on an issue which may come before his agency for a ruling, and rarer still for such an official to even hint how he feels about an issue already before it. So imagine how very rare it is for three commissioners of the FCC (including the Chairman) to publicly express very strong feelings on a legal petition they are going to have to decide," says Prof. Banzhaf.

Broadcasting law experts know what it probably means: the agency is already beginning to pressure broadcasters to act on their own to avoid delays and legal problems over license renewals.

Today, at a press conference, FCC Chairman Tom Wheeler said he personally finds the word "Redskins" offensive, and urged the team to change it. He then went out of his way to say that "there are a lot of names and descriptions that were used for a time that are inappropriate today, … I think the name that is attributed to the Washington football club is one of those."

While obviously declining to say if he would vote not to renew a broadcast license over this issue, he did promise, in speaking of Banzhaf's petition, that "we will be dealing with that issue on the merits, and we will be responding accordingly."

This apparently means that the renewal of licenses challenged on this ground will be delayed, and that they will probably have to go through a formal evidentiary hearing—a procedural step the law requires if there are any material issues of fact as to which there are any doubts or questions.

Here such issues abound. The formal legal petition to deny the renewal of the license of Snyder's WWXX-FM says that repeated and unnecessary use of the word "Redskins" constitutes both "hate speech" and "fighting words"—the former because of allegation in an affidavit, backed up by almost 100 studies, showing that American Indians suffer violence as a result of its widespread use; and the latter because the word, likely to trigger the impulse to fight, thus falls outside the protection of the U.S. Constitution.

The agency may also have to take testimony to help it determine if the repeated and unnecessary use of "racial slurs," as the "Redskins" name was found to be in several legal proceedings, serves the "public interest" as the law requires for those given a monopoly on a very valuable portion of the nation's airwaves.

"If the FCC determines that stations are free to use such racial and ethnic slurs as often as they wish, it could open the door to non-stop racist rants against "N*gg*rs, Sp*cs, W*tb*acks, Ch*nks, K*kes, C*nts, F*gs, etc.," argues Banzhaf, noting that even the musical group "Niggaz Wit Attitudes" was virtually never called by its full name on the air, even when its music was played for an understanding audience. [Expurgations, as always in this blog, are in the original; we don't expurgate ourselves. -EV]

Jessica Rosenworcel, one of the other five FCC commissioners, has told B&C/Multichannel News, in an unusually candid statement for a sitting official, that she recognizes that a number of people are offended by the name "Redskins" for Washington's NFL football team, and has "concerns" herself about it.

FCC Commissioner Mignon Clyburn has also taken the unusual step of speaking out, saying "this is true even considering the current fate of Washington's football team, which is saddled with injuries, wrestling with quarterback challenges, and resisting calls to change the team's name for being offensive to Native Americans."

Some time ago—in a show of solidarity which encouraged Banzhaf to file his formal legal petition, and to plan to file additional ones against TV stations in Los Angeles when their licenses come up for renewal in a few months—a former chairman of the FCC, two former FCC commissioners, and almost a dozen additional broadcast law experts issued a public statement concluding that stations which repeatedly and unnecessarily use the word "Redskins" on the air are apparently violating federal broadcast law, and could lose their licenses for doing so. Banzhaf's petition will test whether they are correct.

Banzhaf says that he is very encouraged that three of the five FCC Commissioners have expressed concerns about the continued use of the "racial slur" "Redskins" on the public's airwaves, and especially by the Chairman's comment that the agency recognizes that it will have to deal with the issue on its merits—which probably means at least holding a hearing.

Even the threat of not being able to have the team name broadcast on radio and television will add to the growing pressure on Snyder to change it, says Banzhaf. Moral suasion—including from the President, half of the Senate, virtually every major Indian organization, many major civil rights organizations, and even legal decisions prohibiting the use of the word on automobile license plates—hasn't worked, nor has the prospect that one day court proceedings will be over and he will no longer have "Redskins" trademarks.

But regulation by a "raised eyebrow," and by the filing of threatening petitions opposing the renewal of broadcast licenses, can have an almost [instantaneous] effect. Within weeks of charging one DC-area station with racism, all major TV outlets were putting black reporters on the air for the first time, notes Banzhaf, who helped put that petition together, as well as using broadcast law to slash smoking rates with free time for the antismoking messages which eventually led to the current ban on cigarette commercials.