The Volokh Conspiracy

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FCC rejects "Redskins" claim (and the argument that the term is constitutionally unprotected "hate speech")


File: Asantewaa Nkrumah-Ture, Mike Wang, and Zorayda Moreira-Smith, protest the name of the Washington Redskins, in the shadow of FedEx Field, along with leaders from the African American, Latino and Native American communities, at a news conference November 25, 2013, in Landover, MD. (Photo by Evelyn Hockstein/For The Washington Post

Critics of the term argued that broadcasters that used it shouldn't have their licenses renewed. Not so, said the FCC on Thursday, in In re Red Zebra Broadcasting Licensee, LLC (FCC Dec. 18, 2014). Here are some excerpts, which strike me as quite right:

Profanity. The Commission defined profanity in 2006 as "language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." Due to "the sensitive First Amendment implications in this area," the Commission limited its regulation of profane language to "the universe of words that are sexual or excretory in nature or are derived from such terms." However, even that limited definition was invalidated by the Court of Appeals for the Second Circuit. [Petitioner John F. Banzhaf III] argues that the word "Redskins" constitutes profanity. He does not allege, however, that the word is sexual or excretory in nature or derived from terms that are. Instead, he asserts that the word "Redskins" is racially derogatory. While the Commission has "recognize[d] that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans," it made clear its intent "to avoid extending the bounds of profanity to reach such language given constitutional considerations." Accordingly, we reject the argument that the word "Redskins" falls within the Commission's definition of profanity.

Public interest, convenience, and necessity. Banzhaf states that "repeated and unnecessary exposure" to the word "Redskins" causes "psychological harm, not only to Indian and non-Indian children, but also to Indian adults." He asserts that, for these reasons, it is contrary to the mandate that broadcasters operate in the public interest, convenience and necessity for the Station to broadcast the word in its coverage of Washington's professional football team….

The First Amendment and Section 326 [of the Communications Act] prohibit the Commission from censoring program material or interfering with broadcasters' free speech rights. In view of this, the Commission has stated that it will not take "adverse action on a license renewal application based only upon the subjective determination of a listener or group of listeners as to what constitutes appropriate programming." It has recognized that: "Licensees have broad discretion—based on their right to free speech—to choose, in good faith, the programming they believe serves the needs and interests of their communities. This holds true even if the material broadcast is insulting to a particular minority or ethnic group in a station's community." Indeed, the Commission has held that "if there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable and congenial." …

Hate speech. Banzhaf asserts that the term "Redskins" constitutes hate speech and incites violence against Indians. There are no provisions in the Act or the Commission's rules banning hate speech. We have recognized that, under the principles enunciated in Brandenburg v. Ohio, the Commission can take enforcement action based on broadcast speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." We will not do so, however, unless a local court of competent jurisdiction has determined that the speech at issue meets the Brandenburg test. Here, Banzhaf has not proffered any evidence that a court has found broadcasting the word "Redskins" to meet the Brandenburg test….

Character qualifications. In evaluating an applicant's character qualifications, the Commission considers misconduct which violates the Act or a Commission rule or policy. The Commission also takes into account certain adjudicated non-Commission misconduct. The Commission generally considers only three types of non-Commission misconduct: felony convictions; fraudulent misrepresentations to governmental units; and violations of antitrust or other laws protecting competition.

Banzhaf alleges that Snyder—and thus Red Zebra—lacks the character qualifications required of a Commission licensee. To support his claim, Banzhaf cites the Station's broadcast of the word "Redskins," which he characterizes as a "racist and derogatory term." However, as discussed above, the broadcast of this word does not violate the Act or any Commission rule or policy. Further, Banzhaf has not offered any evidence of adjudications that the Station's broadcast of the word "Redskins" violates any other laws. Banzhaf also points to a newspaper article that accused Snyder of various transgressions. Banzhaf does not proffer any evidence regarding these alleged non-FCC transgressions. In any event, Red Zebra rebutted Banzhaf's claims. Accordingly, we find that Banzhaf has not established a prima facie case that Red Zebra lacks the character qualifications to be a Commission licensee.

(RELATED: Petition to block Dan Snyder's radio station from renewing its license dismissed by FCC)