The National Religious Broadcasters has asked the FCC not to open a proceeding on whether broadcasters use of the term Redskins is "hate" speech.
That came in response to a petition by legal activist John Banzhaf to deny Washington Redskins owner Dan Snyder's license to operate radio station WWXX-FM on the grounds that use of the term is not in the public interest because it is akin to obscenity and may also be "hate" speech.
Banzhaf cited studies showing racially derogatory words related to Indians can cause "real physical harm, including beatings, bullying and ostracism."
Obscenity is unprotected speech that can be banned, but as the FCC itself points out "expressions of views that do not involve a 'clear and present danger of serious, substantive evil' come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC." There is an exception for "indecency" and "profanity," which cannot be banned but can be restricted to times of day when children are believed least likely to be in the audience (10 p.m. to 6 a.m.).
In a letter to FCC Chairman Tom Wheeler, NRB President Dr. Jerry Johnson said he was alarmed that Banzhaf had raised the "hate speech" issue.
NRB has historically fought efforts to restrict so-called hate speech, arguing that it could restrict speech in opposition to gay marriage or abortion as "hate" speech.
He points to Banzhaf's statement that "the general topic of 'hate speech' is so broad and complex, potentially covering many different types of words and statements, and many different types of harm as to which the causal connection may be vague if not indeed nonexistent."
"What constitutes true 'hate speech' is convoluted, yet the connotations of such an accusation are extremely grave," Johnson said. "Sadly, this term has been used recklessly by some in our nation and other democracies in an attempt to expunge opposing viewpoints from the marketplace of ideas."
Concerns about the FCC weighing in to the Redskins name debate were raised when Wheeler said in a press conference that the FCC was considering the petition, particularly after Wheeler told B&Cthat he thought the name was offensive and should go.
But Wheeler later pointed out in a letter to the L.A. Times that reviewing petitions was standard procedure. In fact the news would have been if Wheeler had said the FCC was not going to review it.
"As the Commission considers the merits of this petition, I urge you, in accordance with the Bill of Rights, to reject this petition's call for a federal proceeding to investigate to what extent is it appropriate if not necessary for the FCC to consider if not oversee such 'hate speech,'" said Johnson.
"As an attorney who actively defends the First Amendment," Banzhaf responded, "I do not share the Mr. Johnson's concern that the FCC reviewing the many studies which show that the repetitive and unnecessary on-air use of the word 'R*dskins' causes harm to many American Indians, and to take any such finding into account as one factor in determining whether a station - which repeatedly and unnecessarily used a word found in many legal proceedings to be a racial slur-" is in fact operating in the 'public interest' as the law requires, would either violate the Constitution or "expunge opposing viewpoints from the marketplace of ideas."
"It's hard to think of an issue of fact which is more relevant to whether a station is operating in the public interest than if its repeated and unnecessary use of racial slurs is causing harm based on a person's race or ethnicity, exactly what these three new petitioners are claiming."
That is a reference to three Native Americans who have joined Banzhaf's petition.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.