The Federal Communications Commission has no basis to sanction CBS for late-night host Stephen Colbert’s gay sex joke about President Donald Trump and Russian President Vladimir Putin, experts say.
Robert Corn-Revere, former FCC chief counsel and a partner at Davis Wright Tremaine in Washington D.C., said that late-night shows like Colbert’s fall outside the FCC’s rules banning indecent speech, which only apply between 6 a.m. and 10 p.m.
Colbert’s “cock holster” joke aired Monday during Colbert’s “The Late Show” opening monologue that began at 11:30 p.m. ET/ 10:30 p.m. CT.
“Broadcasts after 10 p.m. are not actionable under the rules” for indecency, Corn-Revere told TheWrap.
Corn-Revere, who worked as chief counsel to acting FCC Chairman James H. Quello, said the FCC can’t cite CBS for violating its anti-obscenity rules, either.
“Obscenity is illegal any time,” Corn-Revere said. “But there is no legitimate obscenity claim here.” (Disclosure: I worked at the same law firm as Corn-Revere a decade ago but we worked in different offices on different cases.)
Corn-Revere said that Colbert’s joke is not obscene because it had serious political value and did not show or describe a sex act.
Marjorie Heins, a First Amendment lawyer and founder for the Free Expression Policy Project, agreed there is no basis to sanction CBS.
“Colbert’s brief off-color joke, which was broadcast late at night and, in any event, was bleeped, would be unlikely to result in any indecency finding even given the agency’s wide-ranging discretion,” Heins told TheWrap.
“On the other hand,” Heins said, “one can never really predict what the FCC will do in this area: there have been so many changes of policy over the years.”
Colbert joked during his Monday night opening monologue that, “The only thing [Trump’s] mouth is good for is being Vladimir Putin’s cock holster,” but CBS bleeped the audio for “cock” and blurred Colbert’s mouth.
Critics said the joke was homophobic, too crude for broadcast television and disrespectful to any president, and started a public campaign on Twitter with the hashtag #FireColbert.
The FCC bans “indecent” and “profane” speech on broadcast television and radio between 6 a.m. and 10 p.m. “when there is a reasonable risk that children may be in the audience,” the FCC website says.
Indecent content “portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity. Profane content “includes ‘grossly offensive’ language that is considered a public nuisance,” the FCC says.
If Colbert had made his joke on his former show on Comedy Central instead of CBS, the FCC’s indecency rules would not apply because they don’t apply to cable, no mater what time of day the joke was aired.
Obscenity is prohibited on broadcast TV and radio, as well as cable and satellite radio, according to the FCC.
Obscene content “appeals to an average person’s prurient interest; depict or describe sexual conduct in a “patently offensive” way; and, taken as a whole, lack serious literary, artistic, political or scientific value,” the FCC website says.
Anyone can file a complaint with the FCC about a radio or TV station.
If the FCC finds a station violates its rules, it has the authority to revoke a station license, impose a fine, or issue a warning.
One of the FCC’s most notable indecency prosecutions was against a radio station for broadcasting comedian George Carlin’s mid-afternoon monologue mocking the FCC’s rules banning the use of “seven dirty” words on TV and radio by using the words in his jokes.
The Pacifica radio station claimed the FCC indecency rules violated the radio station’s right to free speech. But the Supreme Court rejected that argument and ruled that the FCC’s indecency rules are constitutional in its 1978 decision called F.C.C. v. Pacifica Foundation.
More recently, the Supreme Court again was asked to rule that the FCC’s indecency rules violated the First Amendment, but the court majority sidestepped the issue in its 2012 decision called FCC v. Fox Television Stations, Inc.
Justice Ruth Bader Ginsberg dissented, saying that the seven dirty words decision by the Supreme Court “was wrong when it issued.”
“Time, technological advances, and the commission’s untenable rulings in the cases now before the court show why Pacifica bears reconsideration,” Ginsberg wrote.