For those looking to CBS and Stephen Colbert to march to the Supreme Court and win a court victory finally getting rid of the Federal Communications Commission’s ban on expletives words, don’t hold your dirty little breath.
The FCC’s ban on “seven dirty words” from 6 a.m. to 10 p.m. on broadcast television and radio — sh–, piss, f—, c-nt, c-cksucker, motherf—er, t-ts, and variations of those words — is here for the foreseeable future, experts told TheWrap.
The “c-ck” part of the joke was bleeped, the show aired after 10 p.m., when indecency rules don’t apply, and it was political commentary about President Donald Trump’s political deference to Russian President Vladimir Putin — all of which should save the joke from the FCC’s rules about indecency, profanity and obscenity, lawyers say.
But even if the FCC went out on a limb and punished CBS for the joke, and CBS took the case all the way to the Supreme Court, many experts believe the nation’s top judges are unlikely get rid of the FCC’s rules banning indecency, profanity and obscenity.
“My guess is that the justices would again sidestep the constitutional issue in the highly unlikely event that Colbert’s off-color comment made it to the Supreme Court,” said Marjorie Heins, a First Amendment lawyer and founder of the Free Expression Policy Project.
Five years ago, television networks and First Amendment lawyers urged the Supreme Court to rule that the FCC’s ban on dirty words violated the First Amendment, but the court majority decided to “dodge the issue of constitutionality” in its 2012 FCC v. Fox Television Stations, Inc. decision, Heins said.
University of Miami Law School professor Lili Levi agreed that the current Supreme Court remains unwilling to toss out the FCC’s censorship rules on constitutional grounds.
“The Supreme Court is not interested in reversing Pacifica,” said Levi, referring to the 1978 Supreme Court decision, FCC v. Pacifica Foundation, in which the court rejected a First Amendment challenge to the FCC’s indecency rules. It ruled that the FCC had the right to sanction a Boston radio station for airing comedian George Carlin’s mid-afternoon satirical monologue using the seven words banned by the FCC.
Not every legal expert agrees. “I believe that the United States Supreme Court would not uphold FCC sanctions,” City University of New York Law School Professor Ruthann Robson told TheWrap. “I would think” that the Court would strike down any punishment for CBS “on First Amendment grounds.”
Ajit Pai, the new FCC chairman, said in a radio interview last week that his agency was reviewing complaints about Colbert’s joke.
The ACLU and other groups argue that the FCC’s rules are unconstitutional because they are vague and unpredictable.
For example, the FCC decided the word “bullsh–” was profane and indecent in the TV show “NYPD Blue,” but the FCC concluded that “dick” and “dickhead” were not, Heins wrote in a friend-of-the court brief filed with the Supreme Court on behalf of the ACLU, Directors Guild of America, and others in the FCC v. Fox case.
According to the FCC, “bullsh–, …whether used literally or metaphorically, is a vulgar reference to the product of excretory activity and therefore falls within the first prong of our indecency definition,” and the “S-Word” is “one of the most vulgar, graphic and explicit descriptions of excretory activity in the English language.”
“Dickhead,” by contrast, is not “patently offensive” because the word was “not sufficiently vulgar, explicit, or graphic,” the FCC ruled.
The FCC bans “indecent” and “profane” speech on broadcast television and radio between 6 a.m. and 10 p.m. “when there is a reasonable risk that children may be in the audience,” according to the commission’s website.
Indecent content “portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity and profane content “includes ‘grossly offensive’ language that is considered a public nuisance.”
The FCC’s indecency and profanity rules do not apply to newspapers, the internet, cable television or satellite radio.