Colbert, the FCC, and the First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Comedian Stephen Colbert has drawn ire and FCC scrutiny for a joke in his monologue implying the President of the United States is in a specific sexual position vis-a-vis the President of Russia.

The remark, which occurred on "The Late Show with Stephen Colbert" is within the so-called safe harbor provisions of the FCC regulation of indecent speech by "radio communication" (including traditional television such as CBS). 

The constitutionality of such regulation was upheld by the Court in FCC v. Pacifica Foundation (1978), involving comedian George Carlin's "Seven Dirty Words" monologue, which had provoked complaints to the FCC by listeners.  But Pacifica's continued viability seems questionable.  Justice Ruth Bader Ginsburg, concurring in FCC v. Fox Television Stations II (2012), which did not reach the First Amendment issues involving fleeting expletives, argued that Pacifica "was wrong when it issued," and further that time, technological advances, and FCC's "untenable rulings" show why Pacifica "bears reconsideration."  Ginsberg cites the concurring opinion of Justice Thomas in the FCC v. Fox Television Stations I, decided three years earlier, in which Thomas highlights the "dramatic technological advances" that "have eviscerated the factual assumptions" underlying Pacifica: traditional broadcast media is no longer pervasive or even dominant. 

Some might argue that the Colbert remark is “obscene” and that obscenity is categorically excluded from First Amendment protection.  But to be obscene, speech must meet the classic test from Miller v. California (1973), requiring that the average person find the speech appeals to the prurient interest, describes in a patently offensive way sexual conduct specifically defined by the applicable state law, and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.  Here, Colbert’s comment would not likely to be found obscene.  It does not appeal to the prurient interest, meaning some excessive or unhealthy interest in sex; it is not sexually arousing. 

Perhaps more importantly, it would be very difficult to find that the Colbert monologue “taken as a whole” lacks serious “political value.” In Hustler Magazine v. Falwell (1988), based on a parody about evangelist Jerry Falwell implying that his first sexual experience was with his mother in an outhouse,  Justice Rehnquist, wrote for the nearly unanimous Court about the importance of caustic humor for free political speech:

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.

Colbert's remark, subject to critique as crude as well as homophobic, is nevertheless the type of political discourse protected by the First Amendment.

Here's the full clip, with the relevant passage starting at about 11:40, albeit with the offending language bleeped out as it was in the broadcast.