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Jokes, Indecency and the Federal Communications Commission

JURIST Guest Columnist, Roy S. Gutterman, of School of Public Communications at Syracuse University discusses the implications of late-night television political satire and the effect of FCC regulation on the First Amendment...

Since the election late-night TV show hosts have been making a killing at the expense of the Trump administration. But new Federal Communications Commission (FCC) Chairman, Ajit Pai, intimated recently that at least one host might have to actually pay, via a possible FCC fine.

Chairman Pai recently went on the interview circuit, responding to complaints [video] about a series of jokes made by Stephen Colbert on the May 1, 2017 episode of "The Late Show." CBS, which broadcasts the late-night show, bleeped the audio and blurred the comedian's mouth to obscure the profanity. The jokes, which had sexual connotations [video], may have been crude and offensive, perhaps even profane or indecent, to some viewers; others may have found them funny, political and highly partisan.

Pai seemed to embrace the complaints of those who were offended. He said the FCC will adhere to Supreme Court precedent [audio] in the matter, but also said there may be an investigation. The FCC, within its regulatory powers, could eventually fine the network or affiliates for allowing the profanity to be broadcast.

However, even a cursory reading of Supreme Court precedent or FCC policies on broadcast indecency demonstrates that any action against CBS and Colbert would not only be inappropriate but would likely violate the First Amendment. The Supreme Court ruled on the government's authority to regulate television and radio broadcasters through licensing, which requires broadcasters to adhere to certain standards, especially with outright legal prohibitions on broadcasting legally obscene material. But there is more room for broadcasting indecent or profane content.

The so-called "safe harbor hours," as articulated by the Supreme Court in FCC v. Pacifica allow broadcasters to air more risqué content between 10 PM and 6 AM. Ostensibly these are hours when children will not be in front of televisions or radios. Pacifica involved the daytime radio broadcast of comedian George Carlin's "seven dirty words" routine--in other words, the "words you cannot say" on the air. Over the past 10 years, the Supreme Court has not done too much to clarify the standards for broadcasting [JURIST report] offensive content, issuing two murky judicial opinions on spontaneous fleeting expletives.

There was nothing spontaneous about the Colbert jokes — they were part of a scripted comedic monologue at the beginning of a taped late-night show. The monologue was cleaned up in post-production and Colbert's comments were certainly fleeting. Beyond that the show was broadcast after 11:30 PM on the east coast, which clearly puts it well within the safe harbor hours.

When content offends viewers or listeners, there is often no shortage of complainants. But some of the outrage is illusory, if not manufactured. Back when Janet Jackson and Justin Timberlake had their wardrobe malfunction during the 2004 Super Bowl half-time show, the ensuing split-second of partial nudity generated 540,000 complaints. However, 85 percent of the complaints were from forms generated by an interest group and 20 percent were duplicates, meaning outraged viewers complained multiple times. It took CBS almost eight years of litigation [JURIST report] and appeals to get the $550,000 FCC fine overturned.

Pai's perceived displeasure with Colbert gives the impression that the FCC exists to censor comedians, especially jokesters who have an agenda against the administration. At this stage it is unclear whether Pai is simply publicly acknowledging a vague group of potentially-aggrieved viewers, even though the law is firmly lined up to favor the broadcaster, or if he is publicly placating the president, who recently elevated him to chairman.

Meanwhile, other regulatory issues are also on the table for modification, including revamping net neutrality and media conglomeration rules [JURIST report]. There is an irony in this — as other FCC policy moves toward deregulation, Pai seems eager to expand the type of content that could get a broadcaster in trouble. The FCC is not America's censor and certainly does not exist to punish comedians or broadcasters who adopt anti-administration stances or tell jokes making fun of the president. The regulatory process should at least provide a level of protection, as will the courts.

But the message is clear. Simply investigating a late-night comedy show monologue is enough to chill speech — a particularly trenchant and important form of speech — political satire. And that is not funny.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the SI Newhouse School of Public Communications at Syracuse University.

Suggested citation:Roy S. Gutterman, Jokes — Indecency and the Federal Communications Commission, JURIST - Academic Commentary, May 18, 2017, http://jurist.org/forum/2017/05/Roy-Gutterman-jokes-indecency-and-the-FCC.php



This article was prepared for publication by Krista Grobelny, Assistant Editor for JURIST Commentary. Please direct any questions ot comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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