The author is with the law firm Fletcher, Heald and Hildreth, on whose blog this article originally appeared.
Last Monday, during his monologue on the Late Show, Stephen Colbert made a number of jokes at President Donald Trump’s expense, including lobbing a series of insults at the President. (The full monologue is available here; check around 11:15 for the portion that has gotten folks talking). One of these insults, which included a joking reference to oral sex involving Pres. Trump and Russian President Vladimir Putin, has created quite a stir. While such a joke could certainly be expected to draw attention, some of the reaction to it, and in particular the reaction to the FCC’s reaction, is probably overblown in light of the governing legal principles involved.
Not surprisingly, Colbert’s joke led to at least some complaints being filed with the FCC. This is not in any way uncommon, as perhaps most programming with even a hint of sexual content will draw a complaint from somewhere. (The joke also got a large response on Twitter and in the media generally, including calls for boycotts and Colbert’s firing, but our focus here is on the FCC). While most such complaints are ultimately resolved with little or no publicity, it seems inevitable that that was never to be the case here. With a President who has been highly critical of the press, a late-night host who has in turn been highly critical of the president, an FCC chairman who has been recently appointed by that President, and the polarized political climate of the moment, this was certainly not a spat that could fly under the radar.
During a couple of press interviews shortly after the Colbert monologue, FCC Chairman Ajit Pai was asked about the incident, and confirmed that the commission has received “a number” of complaints. Chairman Pai went on to say (in a May 4 interview with Philadelphia radio station WPHT), that “[the FCC was] going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action,” which he indicated would typically involve a fine in the event a violation was found.
The chairman’s response has itself created something of a firestorm, leading to a number of articles suggesting that the FCC is “going after” Colbert, presumably with some political motivation. Some commentary has characterized the FCC investigation as censorship, and the Writers Guild of America has argued that the chairman’s comments indicated a “willful disregard for the First Amendment.” At least at this point, this rhetoric seems a bit overblown. While the commission could, of course, take action in this proceeding that would cause legitimate controversy, it seems that so far, all the chairman has done is to admit that the FCC has received complaints, confirm that it will do its job in resolving them, and acknowledge the limits on the commission’s authority.
Under the commission’s rules and precedents, when it receives a complaint regarding allegedly indecent or obscene programming, it is required to look into that complaint. In doing so, and in imposing any type of penalty based on its findings, the Commission is bound to follow, as Chairman Pai acknowledged, “the law as it’s been set out by the Supreme Court and other courts.” That law in this case is quite clear, and would, in my opinion, make it extraordinarily unlikely that the commission will impose any sanction on Colbert.
As the chairman noted in his public comments, Colbert’s monologue aired after 10:00 pm and, as such, would need to be “obscene” to warrant a sanction, rather than simply “indecent.” For programming airing between 6:00 a.m. and 10:00 p.m., the commission can impose fines or other sanctions for programming that it finds to be “indecent” or “profane.” The standards for indecency and profanity have historically been very difficult for the commission to define, and almost every time the commission imposes fines for such programming, they are controversial. Nonetheless, such fines are not terribly uncommon.
The standard for “obscene” programming, however, has been pretty clearly defined by the Supreme Court. The court has established a three-prong test for “obscene” programming, which must 1) applying contemporary community standards, appeal to an average person’s prurient interest, 2) depict or describe sexual content in a “patently offensive” way, and 3) taken as a whole, lack serious literary, artistic, political or scientific value. If content is deemed obscene (whether it is broadcast content or otherwise), it no longer is protected by the First Amendment and can therefore be regulated. As a practical matter, it is extraordinarily difficult to satisfy this test, as can readily be demonstrated by the continuing legality of the pornography industry (or any site you could find within three clicks on the Internet). Indeed, while the FCC in recent years has addressed numerous indecency claims, and imposed often stiff penalties for indecent broadcasts, it has not done so for allegedly obscene programming. In light of the inclusion of Colbert’s statement in a clearly political monologue, and the fact that it was almost certainly not intended to appeal to prurient interests (i.e., it was not intended to be arousing), it would be clearly contrary to precedent for the FCC to find obscenity here.
Because the FCC has received complaints regarding Colbert’s monologue, it must at least review them, as well as the underlying programming. Consistent with precedent, however, there is simply no violation deserving of punishment. While some may have preferred that Chairman Pai say this explicitly, such a statement would open an entirely separate set of concerns in the form of an FCC chairman prejudging an ongoing proceeding. Based on the law, however, and at least as regards the FCC, it seems that all the sound and fury regarding Colbert’s joke really will signify nothing.