Several articles published at the end of last week suggested that the FCC, based on a statement by FCC Chairman Pai on a radio show, would be investigating comments made by Stephen Colbert on a program last week. The comments, suggesting a sexual act between President Trump and Vladimir Putin, has raised much controversy and apparently resulted in the filing of a number of complaints at the FCC. However, just because the statement was controversial does not mean that the FCC has any jurisdiction to do anything about it consistent with its precedent and constitutional protections which governs speech generally. The Chairman’s statement was no doubt nothing more than an acknowledgement that the FCC would deal with complaints that were filed, rather than any implication that there was likely to be any penalty for the statements of the TV host. Why?
The Colbert Show starts at 11:30 PM on the east and west coasts. Even in the rest of the country where it runs earlier, it begins at 10:30. Under the FCC’s policy on indecency, programs airing after 10 PM and before 6 AM are considered to be in the “safe harbor” where children are unlikely to be in the audience, so indecent programming – programming that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” – is not prohibited. In other words, during these overnight hours, stations can run material that is sexually oriented and which would normally not be acceptable on television – allowing more adult oriented content to run even on broadcast stations. As the Colbert program ran during this safe harbor, the FCC’s indecency rules would not apply. But what about obscenity?
Theoretically, a program that runs during the safe harbor could still be illegal if it is obscene. But for a program to be obscene, it needs to be really bad. Even the Supreme Court has had difficulty finding content to be obscene, looking at factors including whether it is designed to appeal to the prurient interests of the viewer, whether it offends contemporary community standards and whether it is lacking in social significance. This is a very high standard as, under our First Amendment, we only want to ban speech (and that is the purpose of defining something as obscene – it says that it can be banned) that is not only offensive but also serves no social purpose. A television program like that in question here is never going to be found obscene – the words describing the specific sexual act itself was bleeped out of the broadcast, the description was not designed to appeal to prurient interests (sexual interests – it was not delivered in such an explicit way as to appeal solely to sexual interest), and it did have social significance – it was delivered in a politically motivated statement. Under these circumstances, the extremely rigorous obscenity test simply would not be met.
So if the speech is not obscene, and can’t be prosecuted for being indecent because of the hour at which it ran, what does that leave? It seems to me that it leaves a bunch of headlines about an “investigation” destined to go nowhere – much ado about nothing.