Stephen Colbert stirred controversy last Monday when he President Donald Trump in his “Late Show” opening monologue. Parodying President Trump’s penchant for lame puns and bad one-liners — Trump recently referred to CBS’s “Face the Nation” as “Deface the Nation” — Colbert piled the burns on hot and fast:
“You’re the ‘presi-dunce,’ but you’re turning into a real ‘prick-tator.’ 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’s cock holster.”
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’s standard operating procedures require it to a review whenever it receives a complaint. And Colbert’s choice of phrase, offensive though it was, isn’t 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 “indecent” content between the hours of 10 p.m. and 6 a.m. unless that content is also legally “obscene.”
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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 “prurient interest” (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’s 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’s “Ulysses.” (No, seriously, it’s filthy.) Whatever you think about the propriety of Colbert’s language, it’s 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 “indecent” 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’s famous monologue, “.” 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’re likely to be exposed to it — even if the content is not “obscene.”
Although the Supreme Court took pains to emphasize the “narrowness” 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 “fleeting indecency,” meaning non-scripted visual or verbal indecency during a live broadcast. (Take, for example, Janet Jackson’s 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’s enforcement of its indecency regulations can most charitably be described as arbitrary. The agency fined PBS for broadcasting a Ken Burns’ documentary because it includes swears uttered by Black musicians. On the other hand, the FCC that the uninhibited use of profanity in “Saving Private Ryan” was acceptable because removing the expletives would “alter . . . the nature of the artistic work and diminish . . . the power, realism and immediacy of the film experience for viewers.”
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 “Eyes on the Prize” that edited James Forman’s call for a more aggressive approach to the civil rights movement: “If we can’t sit at the table, let’s knock the fucking legs off.”
It’s time to reconsider how we regulate broadcast media. Since the Supreme Court’s ruling in Pacifica, cable television, satellite radio, and the internet have allowed many people unfettered access to the whole scope of human creativity, including “indecent” 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’s concern over George Carlin’s seven dirty words seems downright quaint. We have a president who brags about grabbing women “by the pussy.” 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 — in particular, the right to receive information free from government censorship — 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
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, 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’s 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 “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The 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.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ 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 “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s 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’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ 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,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” 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
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.