Legal Analysis: FCC Properly Rules in Favor of Redskins

| December 22, 2014

By Steven J.J. Weisman
TALKERS 
Legal Editor

 

weismanwriterBOSTON — There has been much discussion in recent years about the use of the name “Redskins” for the NFL’s Washington franchise and I believe that such discussion is a healthy exercise of free speech.  The propriety of the name “Redskins” was even determined last June to be inappropriate for continued trademark protection because the name disparages a group.   That decision is presently under appeal.

However, one place that the discussion of the propriety of the name had absolutely no business being discussed was at the FCC during the course of an objection to the radio station license renewal application of Washington, DC radio station WWXX-FM.  This radio station is owned by Dan Snyder, the owner of the NFL’s Redskins, and is part of the team’s radio network.  An objection was filed by a law professor and others to the license renewal, as was his or anyone else’s right.  However his reasoning was totally spurious as recognized by the FCC which showed a little political testosterone and rightfully rejected all of the professor’s objections and renewed the application of WWXX-FM.

This was a matter of the First Amendment and the First Amendment stood strong.

The objection to the renewal tried to twist legal terms totally beyond their meaning.   The objectors argued that the term “Redskins” was obscene.   Obscenity is not permitted on the public airwaves and continuing use of obscenity on a radio station would legitimately be a ground for denying a renewal of license.  Obscenity may be in the eye of the beholder to some people, but not in the eyes of the established law and the FCC rules and regulations which limit obscenity to the depiction or description of sexual conduct.  The FCC thus, as I expected and predicted, denied that the term “Redskins” was obscene.

The objection to the renewal went on to argue that the term “Redskins” qualified as profanity, which is unprotected speech and could, if repeatedly spoken on the airwaves, result in a license not being renewed.  However again, absolutely no established definition of profanity comports with the expanded definition of the word profanity proposed by the objectors to ban the word “Redskins.”  It was argued that the word was the equivalent to the “N word” as to offensiveness, and it may well be.  However, that argument is totally irrelevant as the FCC has previously recognized that although racial or religious epithets may be offensive to most Americans, they qualify as protected free speech.  In a ruling from 2006, the FCC wrote that it intended “to avoid extending the bounds of profanity to reach such language given constitutional considerations.”

The objectors went on to argue that the use of the word “Redskins” on the public airwaves caused “psychological harm not only to Indian and non-Indian children, but also to Indian adults.”  However, what was apparently overlooked by the objectors was, as stated succinctly by the FCC in its decision to grant the license, “the First Amendment and Section 326 (47 U.S.C. section 326) prohibit the Commission from censoring program material or interfering with broadcaster’s free speech rights.”  And indeed that is exactly what we are talking about here, namely attempting to censor unpopular words or thoughts.  As the FCC stated in a 1966 ruling “if there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable and congenial.”   It is easy to be in favor of free speech when it comports with your beliefs, but the real test of free speech is that our laws protect the rights of speech even when it represents unpopular views.

The litany of spurious objections to the license renewal also included a claim that it constituted hate speech.  There is only one problem with this objection.  As the FCC indicated in its ruling “There are no provisions in the Act or the Commission’s rules banning hate speech.”  The Supreme Court decision in Brandenburg v. Ohio recognized that hate speech was protected as an exercise of First Amendment rights unless the particular speech incited imminent lawless action or violence, however, although the objectors argued that the word “Redskins” spoken over the airwaves on WWXX incited violence against Indians, they provided no evidence to support the allegation.

Finally, the objectors argued that Dan Snyder was not of sufficient good character to warrant a license renewal with the basis of his bad character being, that he or his station on his behalf, spoke the word “Redskins” which the objectors characterized as racist.  However, this argument also fell flat as the reasons generally considered by the FCC in determining misconduct are limited to “felony convictions; fraudulent misrepresentations to governmental units; and violations of antitrust or other laws protecting competition.”  Exercising one’s right to free speech has not yet been determined to be misconduct.

The FCC carefully considered the objections and dismissed each and every one of them.  The license renewal was granted.  The objectors have indicated that there will be an appeal at which time it can reasonably be expected that the result will be the same.

As I stated at the outset of this column, reasonable people may differ as to the propriety of the use of the name “Redskins” for the Washington NFL franchise, but to attack the First Amendment to advance your cause is totally inappropriate.

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Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts 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 legal matters and the subjects of identity theft and scams.

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Category: Legal