Blog Post

President Trump’s “S&!%hole” Remark Shines New Light on FCC’s Ambiguous Policy on Profanity/Indecency

January 12, 2018

Broadcasters found themselves facing a conundrum on Thursday when President Trump, in a meeting with Congressional leaders about immigration, reportedly referred to Haiti and certain African countries as “shithole countries.”  24-hour cable networks immediately reported on the President’s comments, repeating the crass term and even including it on their lower-thirds.  Unlike their cable, newspaper, online and print brethren, however, broadcasters were forced to wrestle with the significant risk associated with the FCC’s still muddy indecency standards in relating the newsworthy incident to the public.

A quick refresher on the indecency laws applicable to broadcasters is in order.  Title 18 of the United States Code, Section 1464, prohibits the utterance of any obscene, indecent or profane language by means of radio communication.  For material to be indecent, it must “depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium.”  The Commission’s rules prohibit the broadcast of indecent and profane material between the hours of 6 a.m. and 10 p.m.  Broadcasters violating the federal indecency laws face fines of up to $397,251 per violation or each day of a continuing violation, up to $3,666,930 for any single act or failure to act.  Newspapers, cable networks, and Internet website providers are not subject to the FCC’s indecency laws.

In the past, where it had been the broadcaster’s judgment that depicting epithets or including vulgar or coarse language was integral to a story, the FCC’s long-standing policy had been to defer to that editorial discretion.  Back in 1991, for example, the agency dismissed a complaint against NPR for broadcasting a story in which organized crime figure John Gotti used the F-word ten times in seven sentences because of the FCC’s reluctance to intervene in the editorial judgments of broadcast licensees.  But, broadcasters were forced to rethink entirely how they present news given an indecency crackdown some years back that involved both news and entertainment programming (you’ll likely recall complaints about The Golden Gobles, The Blues, Saving Private Ryan, Good Morning America and other programming), including a course change that declared some words inherently indecent and profane, and so subject to fine regardless of the context in which they are presented.  The intrinsic ambiguity in these FCC decisions and the specter of enterprise-threatening fines and license revocations has resulted in a “play it safe” attitude on the part of broadcasters, even in the context of newscasts.

While the FCC’s indecency policy was the subject of fairly recent Supreme Court scrutiny, the Court took a narrow approach to its review, leaving both the FCC and broadcasters with little clarity.  The Court, without dissent, set aside the Commission’s orders citing Fox and ABC for indecency violations, finding that the agency failed to give the networks prior, fair notice that fleeting expletives and momentary nudity could be found actionably indecent.  In the narrow decision, the Court declined to overturn its landmark 1978 ruling on indecency, FCC v. Pacifica Foundation, or to reconsider the legal underpinning of broadcast content regulation set forth in Red Lion Broadcasting v. FCC. The Court instead narrowly decided the case on Fifth Amendment due process grounds, explaining that it is imperative that “regulated parties . . . know what is required of them so they may act accordingly” and “so that those enforcing the law do not act in an arbitrary or discriminatory way.”

Accordingly, in 2013, under the Obama Administration, the FCC issued a Public Notice seeking comment on whether the full Commission “should make changes to its current broadcast indecency policies or maintain them as they are.”  The Public Notice stated, however, that it does not alter the FCC’s current indecency policies, and that the Bureau continues to actively investigate “egregious” cases of broadcast indecency during the pendency of the proceeding.  This proceeding remains pending.

Broadcasters, therefore, again found themselves with a difficult choice in reporting on the alleged statement made by President Trump yesterday: repeat verbatim a phrase attributed to the President (one which, arguably, could be held indecent and/or profane by the FCC) or use restraint so as to avoid potential FCC action, but at the risk of minimizing the impact of the President’s speech and, potentially, compromising their journalistic values.  And then there is the question of whether the President, who has shown a proclivity to pick fights with the media, would pressure the FCC (an independent agency) to take action against a licensed broadcaster for repeating words attributed to him.

Ultimately, different networks adopted different approaches.  According to the New York Times:

On Thursday’s network evening newscasts, NBC News was the only organization that quoted Mr. Trump in full. Anchors at ABC and CBS used the word “blank” instead.

This, of course, is not the first time that news outlets have struggled with how to report on comments from Mr. Trump.  In October 2016, a behind-the-scenes tape emerged of then-candidate Trump saying that, as a celebrity, “You can do anything.  Grab ’em by the pussy.  You can do anything.”  Although most broadcasters reported on the remarks, they typically did not use Mr. Trump’s exact words and any graphics used the spelling “p*ssy.”

The FCC typically investigates potentially indecent programming only when it has received complaints from viewers or listeners.  In a sense, should complaints be received about broadcasters using the word “shithole” to report on this incident, it may present an opportunity for the Commission, under a Chairman with a strong record of support for broadcasting and the First Amendment, to clarify that, while there may not be a “news exemption” to the indecency rules, context does matter, and such reporting does not pander or titillate, and is not presented for its shock value.  It would be a seemingly perverse result to hold a broadcaster liable for merely repeating words allegedly uttered by the President in a discussion about immigration policy.  Broadcast journalists historically have exercised reasonable judgment, responsibility and sensitivity to the public’s needs and tastes in their newscasts, but, currently, broadcasters have nothing approaching clear guidance as to what content the Commission will deem to be indecent.  As a result, the censorial effects continue to be evident in broadcast newsrooms.

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