FCC Mulls a "Ban" on "Redskins"

I really hadn't intended to write about this---I swear.  But so much of the early reporting on this story left out important details that I decided I needed to address a couple of points.

First, the story itself: Many outlets, including CNBC, reported today that the FCC may soon consider moving to take action against radio and television broadcasters who continue to use the word "Redskins."  This statement comes on the heels of a petition filed by legal activist John Banzhaf III, a law professor at George Washington University who has also been at the forefront of the anti-smoking and anti-fast-food movements.  Banzhaf is renowned for his advocacy and skillful use of litigation as a tool for enacting his preferred societal changes.

Federal Communications Commission Chairman Tom Wheeler said today of Banzhaf's anti-Redskins FCC filing, "We'll be looking at that petition, we will be dealing with that issue on the merits and we'll be responding accordingly."  Wheeler added that "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."

The story made headlines today because these are the strongest, most definitive words yet issued by Wheeler on the topic.  Previously, Wheeler had expressed mild discomfort with "Redskins," but his more recent thoughts not only indicate that he would look favorably on the Banzhaf petition, but that its consideration is imminent.

Most of the reports I've read, however, got some key things wrong.

The first is the notion of a "ban" on "Redskins."  An FCC-imposed ban would be legally impossible.  Under First Amendment jurisprudence, only obscenity may be banned outright.  This is because obscenity is considered one of those very rare types of speech that is unprotected by the First Amendment.  The Court laid out the rules for determining obscenity in a 1973 case called Miller v. California.

I need not go into all the details of the case, but two keys to remember are: 1. The legal definition of obscenity is very narrow.  This is a good thing, as it means that just about everything is protected speech.  This is why, for example, run-of-the-mill pornography can't simply be banned by the state.  2. A necessary element to obscenity is that some aspect of it must be sexual in nature.

Whatever one thinks of the word "Redskins," it would never, under any circumstances, meet the legal definition of "obscenity."  Yet, Branzhaf has argued that broadcasting "Redskins" is "akin to broadcasting obscenity."

Naturally, this is entirely---and, more to the point, legally---untrue.

Even the FCC's own rules recite the Miller test for determining what is obscene.  "Redskins" could never ever qualify.

Likewise, "Redskins" could not be "indecent" under the FCC's rules.  The FCC defines "indecency," in part, as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities."  (emphasis mine)

Again, "Redskins" could never meet this definition, because it has nothing to do with "sexual or excretory organs or activities," the Giants game notwithstanding.

Finally, there is the least-onerous of the type of material the FCC negatively regulates: Profanity.

Despite most of the reports I saw today referencing obscenity and indecency, the definition of profanity is the only one that could ever even possibly include "Redskins."  The FCC defines profanity as "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."  The FCC may confine the use of profanity by over-the-air broadcasters between 10:00 p.m. and 6:00 a.m. local time.  The more observant among you will notice that the Redskins play nearly all of their games after 6:00 a.m. and before 10:00 p.m.

Still, the FCC's guidelines relating to objectionable language is also fairly limited by a number of provisos and prior rulings.  The biggest one is that context is key.  Whether announcers referring to "Redskins," meaning football players, would qualify as "profanity" under the more permissive rules of the modern FCC is very much in doubt.

It isn't impossible, however.

It is incredible to think that "Redskins" might be subject to tighter regulation than words much more widely accepted as offensive references to ethnicity, but we've already seen that happen in the world of patent and trademark law.

Banzhaf is a legal scholar and is certainly no fool.  He doesn't seriously believe that "Redskins" is akin to obscenity---at least I hope he doesn't.  But planting that rhetorical "seed" is critical to convincing the FCC and the public that dramatic action is required.

My own take is that there is little the Washington Redskins can do by themselves to rally support for their cause.  Any attempt, whether it's creating a website, hiring a lobbyist, or establishing a Native-related charity, will be slammed by a wide variety of prominent media outlets.

The one thing that will shore up support for the Redskins among people on the fence---or even among some who otherwise think the name should be changed---would be for the organization to appear to be targeted by the government.

Letters from the Senate are one thing, but cancelling trademarks or threatening to pull tax-exempt status seem to cross into more uncomfortable territory.  Moreover, actually forbidding broadcasters from saying a word that most of the country finds inoffensive would be hugely problematic.  Even many First-Amendment-loving name-change advocates in the media and elsewhere would have misgivings about this rather unprecedented step.

The FCC doesn't move particularly quickly, so it probably won't be until next season at the earliest before this aspect of this issue is resolved.

In the minds of those who haven't dug in their heels on one side of this issue or the other, the FCC making an utterance of "Redskins" a violation of federal law might be the one and only thing that turns Dan Snyder from villain to victim.