By Steven J.J. Weisman
BOSTON – It is hard to give a definitive answer to the above question which is part of the problem because the indecency standards for broadcast radio are not particularly clear. In 2012 when the Supreme Court ruled on this matter in response to enforcement decisions against Fox and ABC, the Supreme Court, unlike the lower appeals court did not rule that the present indecency rules violated the First Amendment. Instead, by a vote of 8-0 they ruled in favor of Fox and ABC thus overturning the FCC’s decisions and fines against the networks on the grounds that the standards were too vague and there was not sufficient notice when the FCC changed its interpretation of its rules. Specifically, the court indicated that, “This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” The FCC has not made any substantial changes to its indecency rules and has kept them in force, largely without any controversy for the last six years.
What this means is that under established FCC rules if the word “shithole” is used between 10:00 pm and 6:00 am, it is allowed as being within a “safe harbor” period when children are assumed not to be listening and could be used.
Prior to the Supreme Court decision, the FCC’s position was that anytime the word “shit” was used, it qualified as being indecent, but that is no longer the case. Now, the FCC reviews each case on an individual basis considering three factors which are first, whether the description or depiction is explicit or graphic; second, whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and third, whether the material appears to pander or is used to titillate or shock. According to the FCC, no single factor is determinative. The weight given to each of those factors depends upon the individual case.
In a case somewhat similar to Trump’s “shithole” comment, wiretap tapes of Mafia figure John Gotti in which he repeatedly used the word “fuck” were allowed to be broadcast.
It is my opinion that the use of the word “shithole” in the context of discussing the president’s comments would be allowed.
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 website www.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.