Can the FCC Really Outlaw ‘Redskins?’

| October 2, 2014

By Steven J.J. Weisman
TALKERS 
Legal Editor

 

weismanwriterBOSTON — In his classic work, “Through the Looking Glass” Lewis Carroll wrote, “’When I use a word,’ Humpty Dumpty said in rather a scornful tone ‘ it means just what I choose it to mean – neither more nor less.’  ‘The question is’, said Alice,’ whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master –that ‘s all.’”

This quote seems to be appropriate to the controversy that has been swirling for years in regard to whether or not the name “Redskins” is a proper name for the National Football League franchise playing football in our nation’s capital.  Proponents of the name say that the word is used as a tribute to Native Americans and in fact, the Washington Redskins trace the name back to being done to honor its early Native American coach.  Opponents of the name find it a racist slur.

The Federal Communications Commission has never officially weighed in on the propriety of the use of the name Redskins although Tom Wheeler, the FCC Chairman has publicly indicated that he believes the name to be a racial slur toward Native Americans the he personally finds offensive.  But now the FCC has been manipulated into having to rule in some fashion on the use of the term Redskins although it is a good possibility that they will rule that it is notredskins logo appropriate for them to be the ones to ban the word from the public airwaves.  It is also important to note that the FCC does not regulate Cable or Satellite television or radio so if they ruled that the word should not be used on broadcast television and radio, their ruling would have absolutely no effect on the use of the word “Redskins” on channels such as the NFL Network, seen on cable and satellite television.

The issue was brought to a head recently by a petition filed by George Washington University Law Professor John Banzhaff III in opposition to a radio license renewal application filed by Washington DC radio station WWXX-FM.    This radio station is the flagship radio station for the Washington Redskins and is owned by Dan Snyder who also owns the Redskins.

Radio broadcast licenses are generally for a period of eight years although the FCC does have the authority to lower the period of the license.  The primary basis for renewing a license is that the station has complied with the rules and regulations of the FCC and, most importantly has served the public interest during the time of its present license.  There are no precise standards as to what it means to serve the public interest.  The license renewal process provides for anyone to be able to object to a renewal application and that is just what Professor Banzhaff has done.

The basis of Professor Banzhaff’s objection is that the use of the name “Redskins” qualifies as hate speech and fighting words, which are words likely to provoke violence.  Banzhaff has also said that the term is “akin to broadcasting obscenity.”  The FCC has no rules against hate speech or fighting words.  It does have rules against indecency, which could not possibly apply to the word “Redskins” and it has rules against obscenity, but nothing against something “akin” to obscenity.  Again, the definition used by the FCC of obscenity could not possibly include the word “Redskins.”

The issue of the propriety of the name “Redskins” for the Washington football team is a legitimate one, but the appropriate place for making that determination is not the FCC.  Just last June, the U.S. Patent and Trademark Office canceled the Trademark registration of the Washington Redskins on the grounds that the name disparages a group.  This decision was done in accordance with specific trademark law standards.  The decision of the U.S. Patent and Trademark Office is presently being appealed.

The present objection brought by Professor Banzhaff may be being brought as much to put political pressure on the FCC, hoping that they in turn would put political pressure on Snyder to change the name.  Certainly the public has become interested in this matter.

My concern and that of others who treasure the First Amendment is that the FCC is not the place for this discussion to be taking place.  Free speech could be dramatically chilled  if the FCC sets a precedent for censoring unpopular terms.  I am someone who believes that the further use of the name Redskins for a National Football League team is inappropriate.  I also believe that the proper places for any determination of the propriety of the use of that name should be in the NFL and the Trademark Office.  This issue has no business being brought up as part of a radio station license renewal.

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Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC.  He is also legal editor for TALKERS magazine and publisher of the websitewww.scamicide.com. He can be e-mailed at: stevenjjweisman@aol.com.  Steven J.J. Weisman is available as a guest to discuss the subjects of identity theft and scams. 

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Category: Legal