Any FCC Action Against Colbert Would Be Unwise

Here's the thing: Any FCC action would seem politically laced at this point.
05/08/2017 11:45 am ET Updated May 08, 2017
Walter McBride via Getty Images

This past week, I criticized Steven Colbert in the Washington Post Outlook column for making a joke I considered to be homophobic and misogynistic. I was not the only one. But on Friday, I was horrified to hear news outlets report that the FCC planned to “investigate” and “take appropriate action” against Colbert’s remarks for being “obscene.” Since then, we have learned that this reporting was likely a little overblown, and that the FCC is simply reviewing consumer complaints per standard practice.

But should the review lead to any investigation or to a sanction, it should be of no small concern to even those of us who have concerns with Colbert’s joke. It would be no small irony for Colbert to be fighting obscenity charges ― in their very first appearance before the United States Supreme Court in 1958, gay rights advocates had to convince the Justices that they were not the obscene ones. In One Inc. v. Olesen, the Los Angeles Postmaster refused to mail one of the nation’s first gay magazines because it was “obscene, lewd, lascivious and filthy.” The Ninth Circuit Court of Appeals agreed with him. But the Supreme Court reversed the Ninth Circuit in a terse one-sentence opinion.

That victory paved the way for the gay rights movement. The first major gay rights activists, the first pride parades, the first set of major lawsuits, all appeared in the wake of ONE. But for that decision, it is unlikely that I, or anyone else, could accuse Colbert of homophobia, that there would be nationwide recognition of same-sex marriage or that major gay characters could appear on TV, stage, movies, and elsewhere.

Tellingly, the ground of any FCC investigation would not be that Colbert acted homophobically—he certainly did not intend to, and even if he did, the FCC could not investigate every time someone said something homophobic (or racist or misogynistic) on TV. The First Amendment protects such viewpoints, however repugnant. Rather, the basis of any action would be that Colbert said something obscene—and under the First Amendment, any viewpoint, if expressed obscenely, can be penalized.

Such a charge of obscenity would rest on the fact that Colbert mentioned a sexual act that complaining viewers do not like. Such squeamishness is reminiscent of the 1950s Los Angeles Postmaster, for whom any mention of homosexuality was troubling. Such puritanism could return political discourse in this country to 1950s standards, which was hardly the nation’s golden era of civil rights.

Further, any FCC action would seem politically laced, designed to defend President Trump from criticism rather than to weed out obscenity. Set Colbert’s remarks against those that President Trump has made in public and private, and they are quite innocuous. The difference, however, is that Colbert’s supposed obscenity was directed at the president—who recently reappointed the FCC’s Chairman to another five year term. Such political targeting would be the death knell for the vulnerable and marginalized in a democracy, including the LGBT community, who will likely suffer over the rest of this President’s term.

Any FCC action against Colbert would be unwise, unwarranted, and unconstitutional. I, among others, remain convinced that jokes like Colbert’s are in poor taste. Colbert continues to defend the joke. But that is the essence of the First Amendment’s “market place of ideas”: citizens debate the merits, accuracy, and even taste of various views, and the public decides who has the advantage. Over the last few decades, the gay rights movement has cornered the marketplace, while social conservatives, peddling hate, fear, and discrimination, have lost their market share. Allowing the government to intervene to suppress such conversation is a threat to all of us.