No government fines for saying “Redskins” on-air

No government fines for saying “Redskins” on-air

First, they came for the team’s trademark protection, and everyone spoke up because we are a nation who loves football.

Then, they came for the media’s right to say the team name on-air, and we all spoke up because we are, again, a nation who loves football—and hates it when politics interferes with our enjoyment of it.

Yesterday the Federal Communications Commission rejected a petition challenging the legality of using the Washington Redskins team name name in on-air broadcasts. From the National Journal:

The author of the petition, George Washington law professor John Banzhaf III, argued that the “derogatory racial and ethnic slur” is deeply offensive to American Indians. The word amounts to obscenity and profanity, which the FCC bans from the airwaves, Banzhaf said.
…
Banzhaf’s petition had asked the commission to reject the license renewal of WWXX-FM, a radio station owned by Redskins owner Daniel Snyder that had repeatedly said the team’s name on the air. Instead, the FCC renewed the license, saying it found “no serious violations.”

But in an interview, Banzhaf said he expected the defeat and that it’s really just “round one” of the fight. He is asking the FCC to reverse past decisions, so he didn’t expect the Media Bureau to side with him, the law professor said. He plans to appeal the decision to the full commission and, if necessary, to the federal courts.

I’m sure he will appeal, and I’m nearly equally sure his arguments against use of the “Redskins” name will continue to fall apart. The FCC’s ruling is comprehensive, thorough, and based in both FCC and Supreme Court case history.

Banzhaf’s petition cited three concerns with the “Redskins” name—that its use violated rules governing obscenity, profanity, and the protection of public interest, convenience, and necessity—and failed to persuade the FCC on any of those points. He misused the legal definition of “obscenity,” so that point was thrown out immediately. His allegations that the brand name amounted to profanity was rejected on First Amendment grounds:

Due to “the sensitive First Amendment implications in this area,” the Commission limited its regulation of profane language to “the universe of words that are sexual or excretory in nature or are derived from such terms.” However, even that limited definition was invalidated by the Court of Appeals for the Second Circuit. Banzhaf argues that the word “Redskins” constitutes profanity. He does not allege, however, that the word is sexual or excretory in nature or derived from terms that are. Instead, he asserts that the word “Redskins” is racially derogatory. While the Commission has “recognize[d] that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans,” it made clear its intent “to avoid extending the bounds of profanity to reach such language given constitutional considerations.”

Banzhaf’s public interest argument was rejected on similar grounds.

I’m sure we haven’t seen the last of these sorts of attacks on free expression, but it’s nice to see the FCC reject the petition, and use the power of the First Amendment to do it.

The ‘Skins are still battling for the right to protect their trademark, but any win on the part of free expression is a win indeed.

You can read the full decision here.

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