FCC eyes punishing broadcasters for using ‘Redskins’ football name
The Federal Communications Commission (FCC) is considering whether or not to punish broadcasters for using the term ‘Redskins’ when referring to Washington, DC’s NFL football franchise.
Legal activist and George Washington University law professor
John Banzhaf III has petitioned the FCC to revoke the
broadcasting license of the capitol’s WWXX-FM over the station’s
use of the name ‘Redskins’. Banzhaf says the word is racist,
derogatory, profane and hateful, making its use "akin to
broadcasting obscenity."
"We'll be looking at that petition, we will be dealing with
that issue on the merits and we'll be responding
accordingly," FCC Chairman Tom Wheeler told reporters.
"There are a lot of names and descriptions that were used
over time that are inappropriate today. And I think the name that
is attributed to the Washington football club is one of
those," Wheeler added.
In 1992, a group of Native Americans, led by Suzan Shown Harjo,
filed a petition with the US Patent and Trademark Office, asking
the PTO to cancel the team’s ‘Redskins’ trademark protection,
calling the name derogatory. While the federal agency initially
sided with the petitioners, a court overturned the decision on a
technicality.
In 2006, a second group petitioned the PTO to cancel the
trademark, arguing that federal trademark law bars the office
from registering trademarks that “may disparage” groups
or individuals. In June, the federal agency upheld the petition
and canceled the Redskins’ trademark. The team has sued the
group, asking for a chance to defend their name in court.
Current owner Dan Snyder has repeatedly said that he would
“never” change the team’s name. Over the past few years,
the controversy has intensified, with several media outlets
(including the Washington Post’s editorial board), local
columnists, and national broadcasting analysts (such as CBS’ Phil
Simms and NBC’s Tony Dungy) refusing to use the moniker. Half of
the US Senate ‒ all Democrats ‒ sent NFL Commissioner Roger
Goodell a letter in May urging the league to pressure Snyder into
changing the team’s name.
The University of Maryland’s Capital News Service (CNS) is one of
the outlets that has chosen not to use the team’s name, referring
to it instead as “the Washington NFL franchise” and
similar terms.
“It’s a controversial subject with strong feelings on both
sides,” broadcast bureau director Sue Kopen Katcef told RT.
“We explained to our sports reporting class and show that
they should talk about the team in more general terms. They know
from the get-go what our policy is.”
“It’s a continued discussion,” she added.
Despite the wire service’s decision, both Kopen Katcef and
Washington bureau chief Rafael Lorente believe that the FCC
should not punish broadcasters for using the moniker.
“Any time I hear any ‘ban language’, I cringe,” Lorente
said. “We made an editorial decision, just as we made an
editorial decision not to name rape victims or children who are
the victims of crime.”
The Washington Post’s Eugene Volokh argues that the FCC likely
will not side with Banzhaf. “[T]he FCC has in the past agreed
that it may not restrict broadcast speech on the grounds of its
supposed racism,” he wrote for the Volokh Conspiracy blog, citing ‘In re Fox
Television Stations, Inc.’ (1993).
Hogs Haven blogger Tom Garrett believes an
FCC-imposed ban on the word ‘Redskins’ would be legally
impossible, and that the moniker does not fit into the “very
narrow” definition of obscenity laid out in the 1973 Miller
v California court case. However, he wrote, it could be regulated
under the agency’s profanity definition.
“The FCC defines profanity as ‘including language so grossly
offensive to members of the public who actually hear it as to
amount to a nuisance.’ The FCC may confine the use of profanity
by over-the-air broadcasters between 10pm and 6am local
time,” Garrett wrote. “The more observant among you will
notice that the Redskins play nearly all of their games after 6am
and before 10pm.”
Despite the controversy over the name, the FCC ruling may come
down to freedom of speech.
“The FCC chairman has suggested that the agency will take a
look at that petition and consider what to do with it,”
Republican FCC Commissioner Ajit Pai said Wednesday during a CNBC
appearance. “For my own part, as a supporter of the First
Amendment, I don’t think the government should ban the use of the
‘Washington Redskins’ team name from the airwaves. But we will
see what the agency proposes to do in the near future.”
Until the FCC rules on Banzhaf’s petition, it could cause a
headache for those broadcasters ‒ especially in the Washington,
DC, market ‒ whose licenses are up for renewal, adding between
six months and three years to the process, and making it
difficult for station owners to sell or obtain loans, John
Garziglia, a District-based communications law attorney told the Post.
“Stations should probably take a second look at using words
that large segments of the population think are offensive,”
he said.