Screw The FCC: “Redskins” Isn’t Indecent or Obscene

The puritanical FCC is at it again–now it is seeking to enter the professional football realm and ban the word “Redskins.” Yes, you heard that right.

The Federal Communications Commission is weighing whether to ban TV stations from saying the name of Washington’s football team.

A law professor filed a petition with the agency earlier this month, claiming that the name “Redskins” violates federal rules barring any indecent content on broadcast television.

At a press conference Tuesday, FCC Chairman Tom Wheeler said he is reviewing the filing.

“We will be dealing with that issue on the merits, and we will be responding accordingly,” Wheeler said.

The FCC chief said he personally finds the term offensive and urged the team to change the name. But he didn’t say whether he thinks it is illegal.

“There are a lot of names and descriptions that were used for a time that are inappropriate today,” he said. “I think the name that is attributed to the Washington football club is one of those.”

American Indians argue that the term is an ethnic slur and is deeply offensive.

Former FCC chairman Reed Hundt penned a letter to the owner of the Redskins telling him that the term is “offensive” but providing absolutely no legal basis for any “banning” of the word.

Regardless of how you might feel about the use of the name “Redskins,” this latest move by the FCC is beyond the pale–and it also has no legal basis, even by the FCC’s own rules and by Supreme Court case law.

The FCC is permitted to ban obscene material from television airwaives. “Obscene” is defined, as per Miller v. California as follows:

Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test:

An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

The team name “Redskins” doesn’t fit into the definition of “obscene,” which is limited to the “seven dirty words”-type material, if you will. But in order for the material to be “obscene,” it must appeal as a whole to the prurient interest and lack serious “literary, artistic, political or scientific value.” So just saying “shit, piss, fuck, cunt, cocksucker, motherfucker, or tits” isn’t enough to be “obscene.” Such usage might fall under “indecent” material. For those of you unfamiliar with George Carlin’s bit, it’s absolutely a must-watch/listen.

The FCC has defined broadcast indecency 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.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.

Again, I don’t see how a team name such as “Redskins” fits in the definition of “indecent.” It has nothing to do with sex and professional sports competitions in the United States have the type of “value” which excludes it from being “obscene.”

Some may feel that the word “Redskins” is offensive and that makes it indecent. This is a very dangerous position to have. Such an approach leads to government censorship. Do we really want the FCC deciding that it can fine people who talk about the Redskins in the context of a football game (or in any context, really)? Such power will have a chilling effect on speech.

The First Amendment wasn’t enacted to protect polite speech. It was enacted to protect unpopular or “offensive” speech. If people are truly and genuinely offended by the Washington Redskins, lobby them to change their name. Don’t try to short circuit the free market through government intervention to chill speech which “offends” the perpetually offended.

As always, free markets are better markets.