Stephen Colbert stirred controversy last Monday when he President Donald Trump in his 鈥淟ate Show鈥� opening monologue. Parodying President Trump鈥檚 penchant for lame puns and bad one-liners 鈥� Trump recently referred to CBS鈥檚 鈥淔ace the Nation鈥� as 鈥淒eface the Nation鈥� 鈥� Colbert piled the burns on hot and fast:
鈥淵ou鈥檙e the 鈥榩resi-dunce,鈥欌�嬧�嬧�嬧�嬧�嬧�� but you鈥檙e turning into a real 鈥榩rick-tator.鈥� Sir, you attract more skinheads than free Rogaine. You have more people marching against you than cancer. You talk like a sign-language gorilla that got hit in the head. In fact, the only thing your mouth is good for is being Vladimir Putin鈥檚 cock holster.鈥�
On Twitter, the hashtag #FireColbert started worldwide. A couple of days later, Federal Communications Commission Chairman Ajit Pai that the agency was reviewing the incident after receiving numerous complaints from concerned viewers. He also indicated that fines could be levied against CBS for any violation of federal broadcast regulations.
The FCC will almost certainly stand down.
The agency鈥檚 standard operating procedures require it to a review whenever it receives a complaint. And Colbert鈥檚 choice of phrase, offensive though it was, isn鈥檛 enough to merit punishment by the FCC. (If it were, many of the shows on cable and late-night television would be sanctionable.) To the contrary, federal law makes clear that network broadcasters cannot be punished for airing offensive, profane, or otherwise 鈥渋ndecent鈥� content between the hours of 10 p.m. and 6 a.m. unless that content is also legally 鈥渙bscene.鈥�
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In 1973, the Supreme Court a three-part test for determining whether material qualifies as obscene. First, the material must appeal to the 鈥減rurient interest鈥� (meaning it has to have the tendency to excite lustful thoughts). Second, the material must depict or describe, in a patently offensive way, sexual conduct specifically identified by the regulating authority. Finally, taken as a whole, the material must lack serious literary, artistic, political, or scientific value.
This is a stringent test, and rightly so. It鈥檚 meant to cover only certain forms of hardcore pornography while extending First Amendment protection to the sort of profanity you might find in James Joyce鈥檚 鈥淯lysses.鈥� (No, seriously, it鈥檚 filthy.) Whatever you think about the propriety of Colbert鈥檚 language, it鈥檚 not obscene.
The strong First Amendment protections enjoyed by Stephen Colbert do not apply across the board, however. A very different standard allows the FCC to punish broadcasters for airing 鈥渋ndecent鈥� material between the hours of 6 a.m. and 10 p.m. That standard came out of a famous case, FCC v. Pacifica Foundation, decided nearly four decades ago, in which the Supreme Court ruled that the FCC could prohibit the airing of George Carlin鈥檚 famous monologue, 鈥�.鈥� In light of the uniquely government-reliant and pervasive nature of broadcast media, the Supreme Court decided that the government has the authority to regulate broadcast television and radio to protect children and unwitting adults from indecent content at times they鈥檙e likely to be exposed to it 鈥� even if the content is not 鈥渙bscene.鈥�
Although the Supreme Court took pains to emphasize the 鈥渘arrowness鈥� of its decision, the FCC has repeatedly expanded the scope of its indecency regulations by adopting ever more vague and subjective standards. In 2005, the agency took the position that broadcasters could be punished for allowing even 鈥渇leeting indecency,鈥� meaning non-scripted visual or verbal indecency during a live broadcast. (Take, for example, Janet Jackson鈥檚 famous during the 2004 Super Bowl halftime show. The FCC fined CBS for the infraction, although its decision was ultimately on procedural grounds.)
The FCC鈥檚 enforcement of its indecency regulations can most charitably be described as arbitrary. The agency fined PBS for broadcasting a Ken Burns鈥� documentary because it includes swears uttered by Black musicians. On the other hand, the FCC that the uninhibited use of profanity in 鈥淪aving Private Ryan鈥� was acceptable because removing the expletives would 鈥渁lter . . . the nature of the artistic work and diminish . . . the power, realism and immediacy of the film experience for viewers.鈥�
That arbitrariness has led to self-censorship: Broadcasters have squelched important artistic and political speech in order to avoid government sanction. In just one example, PBS provided broadcasters with a version of the civil rights documentary 鈥淓yes on the Prize鈥� that edited James Forman鈥檚 call for a more aggressive approach to the civil rights movement: 鈥淚f we can鈥檛 sit at the table, let鈥檚 knock the fucking legs off.鈥�
It鈥檚 time to reconsider how we regulate broadcast media. Since the Supreme Court鈥檚 ruling in Pacifica, cable television, satellite radio, and the internet have allowed many people unfettered access to the whole scope of human creativity, including 鈥渋ndecent鈥� content that would undoubtedly be regulated by the FCC if it were aired on broadcast television or radio. By the standards of modern media and political discourse, the Supreme Court鈥檚 concern over George Carlin鈥檚 seven dirty words seems downright quaint. We have a president who brags about grabbing women 鈥渂y the pussy.鈥� Meanwhile, the government claims the power to regulate whether people can discuss it on network television.
Millions of Americans, especially poor people and people of color, rely on broadcast television and radio as their primary sources for news and entertainment. Their First Amendment rights 鈥� in particular, the right to receive information free from government censorship 鈥� are being restricted by an outdated and arbitrary regulatory regime that accomplishes nothing except the sterilization of public discourse that takes place over broadcast media. Stephen Colbert is probably off the hook this time, but the FCC has no business policing what people say on television.
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Press ReleaseDec 2024
Free Speech
National Security
老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
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News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
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