Push for FCC Fines for Colbert Jokes Likely a Non-Starter

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Kyle Daly

The Federal Communications Commission would have a very hard time making the case that comedian Stephen Colbert and CBS Corp. should be punished for crude jokes about President Donald Trump, despite viewer complaints.

The FCC is reviewing complaints after Colbert, host of CBS’ “The Late Show,” cracked jokes on his May 3 show that included sexual references involving Trump and Russian President Vladimir Putin, FCC spokesman Neil Grace told Bloomberg BNA.

It’s unclear at best whether the jokes are punishable under FCC standards—and even less likely the commission could convince federal courts that Colbert should be sanctioned.

“It’s very hard to articulate a clear principle as to when language or depictions are indecent or obscene,” former FCC Enforcement Bureau Chief Travis LeBlanc, now a partner at Boies Schiller Flexner LLP, told Bloomberg BNA. That vagueness, along with repeated court rejections of FCC attempts to punish content deemed objectionable and the First Amendment would all make it very difficult for the agency to go after Colbert.

To be sure, it’s unclear whether the FCC has any appetite for trying to revive the aggressive content policing of the first Bush administration. The agency has proposed no penalties under chairman Ajit Pai and acting Enforcement Bureau Chief Michael Carowitz. At this stage, the Colbert case is merely a review of submitted comments and not an investigation, Grace said.

Indecency, Obscenity: Not Easy to Regulate

“The FCC track record when it comes to being affirmed by courts is not good. Historically it loses,” LeBlanc said. “It’s because it’s very difficult to regulate indecency and obscenity and also protect the First Amendment.”

The Colbert case is tough to make in any event, given that it was a late-night broadcast with the most conceivably offensive bit censored and because Trump was the target. The courts would likely see any attempted FCC punishment as chilling to free speech and the free press, LeBlanc said.

The FCC can fine TV and radio broadcasters for material deemed obscene, indecent or profane. Under current rules, per-station penalties top out at $383,000 for an individual broadcast or $3.5 million for continuing violations. The FCC can fine multiple affiliates for broadcasting the same objectionable content, as it unsuccessfully sought to do in several high-profile cases during the George W. Bush administration. Curse words are considered profane; material that describes sexual or excretory activity either in graphic detail or at length or is intended to titillate or shock is considered indecent; pornography is considered obscene.

Specific interpretation of those standards is up to a given FCC chairman and enforcement bureau. It’s possible that Pai’s FCC may consider Colbert’s jokes indecent or profane, even though “The Late Show” bleeped out a word and blurred Colbert’s mouth when he uttered the punchline drawing the most criticism.

But broadcasters have a “safe harbor” between 10pm and 6am that allows them to broadcast indecent and profane material. Only obscenity is punishable after 10pm; “The Late Show” airs at 11:35pm. To pursue any fines, the FCC would have to make the case that the joke, bleeps and all, was pornographic: lacking any serious literary, artistic, political or scientific value and describing sexual activity in a way intended to arouse.

String of Failed Cases

The last Republican FCC pursued a number of high-profile obscenity, indecency and profanity cases, including proposed fines against stations and affiliates of CBS, Walt Disney Co.'s ABC and Twenty-First Century Fox Inc.'s Fox for an incident during the 2004 Super Bowl halftime show during which singer Justin Timberlake exposed singer Janet Jackson’s breast, and for a series of profanities uttered by celebrities during live awards shows. In 2012, the U.S. Supreme Court rejected all those fines. The high court ruled in a consolidated awards show case ( FCC v. Fox Television Stations , U.S., 10-1293, decision 6/21/12 ) that the FCC didn’t give enough advance notice of what it believes violates its rules. Shortly after that ruling, the court declined to hear an FCC request to overturn a lower court’s decision to kill the $550,000 Super Bowl fine ( Federal Communications Commission, et al. v. CBS Corporation, et al. , U.S., 11-1240, certiorari denied 6/29/12 ).

The FCC in recent years has been hesitant about levying fines over broadcast content. The FCC pursued far fewer penalties in the second half of the Bush administration than it had during Bush’s first term, and courts rejected the biggest fines the agency did attempt to impose then, over sex scenes from several years before on ABC’s “NYPD Blue” and CBS’ "Without A Trace” television shows.

The Obama-era FCC settled a handful of radio indecency cases and imposed just two fines for indecent, profane or obscene programming. One of those involved a Roanoke, Va., CBS affiliate’s broadcast of a pornographic video it failed to edit out of a news story on a former adult-film star settling in the area.

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law