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Sunday, May 07, 2017

Opening up broadcast indecency

At the end of the day, the minor controversy over the FCC's "inquiry" into Stephen Colbert's "cock-holster"* joke is going to be a lot like people in the administration talking about "opening up the libel laws"--a lot of noise that will never be put into any legal effect and cannot be taken seriously.

[*] As George Carlin reminded us, "cocksucker" is one of the words you cannot say on television. It is not clear that the word "cock," standing alone, falls in the same category.

The ban on indecent speech on broadcasting is 6 a.m.-10 p.m., so Colbert (at 11:30 p.m.) operated in a zone in which indecent speech is not legally prohibited. Colbert and CBS thus can be punished only if his joke was obscene under Miller. But we are past the point that written words alone can be held legally obscene, given how community values have evolved in understanding what is patently offensive. And that is before we get to the fact that the comment was a joke about the President of the United States, so it has serious political value. Frankly, I doubt this comment would be deemed punishable indecency, even if broadcast outside the safe harbor. If it could not be indecent, no way could it be obscene.

Still, I found this Fortune story by Aric Jenkins both wrong and problematic. The author objects to calling an FCC investigation "censorship," insisting that it is merely following standard operating procedure in logging and reviewing complaints. Plus, the author insists, any "penalty would be monetary — not any form of censorship." Again, I thought we long ago left behind the idea that post-publication punishment is not a form of censorship of speech. And I wonder if Mr. Jenkins would be so sanguine if the federal government established standard operating procedures for reviewing complaints about his articles and imposing a monetary penalty on them--would he insist that this is not censorship.

Posted by Howard Wasserman on May 7, 2017 at 05:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

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