The FCC’s reach dies in darkness: Colbert can say what he wants on ‘The Late Show’

Time, literally, is on his side.


Stephen Colbert, a man who once roasted President George W. Bush to his face in one of the ballsiest White House Correspondents’ Dinner speeches in history, is not sorry for his recent monologue-turned-rant against President Donald Trump. He is not sorry for the playground-level insults he tossed off as the diatribe picked up speed — “You’re the presidunce, but you’re turning into a real pricktator” — nor is he sorry for the line that has garnered the most attention: “The only thing your mouth is good for is being Vladimir Putin’s cockholster.”

Plenty of late night comedians are more relentless and cutting in their criticisms of Trump and his policies than Colbert. That monologue was the angriest Colbert had allowed himself to appear on camera in a while, and it hardly stands up to the blazing rage of righteous-hilarity machine Samantha Bee, the surgical strikes of Seth Meyers’ “A Closer Look” bits, or the analytical fury of John Oliver. Just about everyone this side of hair-fluffer Fallon is tougher on the Oval Office’s current occupant.

But it is Colbert, through this particular one-liner, who incited enough outrage for some people to demand he be fired by taking their complaints to HR for the masses (Twitter) and the entertainment industry’s equivalent of a principal’s office (the FCC). The outrage, in a kind of beautiful, bipartisan twist, came from both sides of the aisle: Conservatives balked at the graphic language and the sex act it described, while some in the LGBTQ rights community decried the comment as homophobic.


Colbert used his next monologue to double-down on the sentiment and his (for now) constitutionally protected right to insult the Commander-in-Chief. “I don’t regret that. He, I believe, can take care of himself. I have jokes; he has the launch codes. So, it’s a fair fight.”

But FCC chairman Ajit Pai, who was appointed to the Federal Communications Commission in 2012 by President Obama and promoted to chairman by Trump in January, has said that the agency will be investigating Colbert anyway. As he told Philadelphia’s Talk Radio 1210 WPHT:

“I have had a chance to see the clip now and so, as we get complaints — and we’ve gotten a number of them — we are going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action.

Traditionally, the agency has to decide, if it does find a violation, what the appropriate remedy should be. A fine, of some sort, is typically what we do.”

Investigate away, but there’s hardly a case to be made here: Not only was Colbert’s mouth blurred and the word in question bleeped, but The Late Show also airs at 11:35 p.m., more than 90 minutes after the end of the FCC’s “safe harbor” time frame of 6:00 a.m. to 10:00 p.m. That 16-hour stretch is the period over which the FCC “has the authority to police allegations of indecent and obscene material on the airwaves,” as Variety explained. Basically, the FCC, like Mufasa, rules over everything the light touches; nighttime is something of a free-f0r-all as far as vulgarity and other such scandalous material goes. The only exception there is obscenity, which is not protected by the First Amendment and is prohibited by law 24 hours a day. Colbert’s riff would fall under the “profanity” category, which includes “‘grossly offensive’ language that is considered a public nuisance.”


And while the FCC reviews all the complaints it receives, follow-through in the form of substantive punishment is fairly rare. The last time the agency issued a sanction was in 2015, against a Roanoke, Virginia television station. WDBJ television was fined $325,000 for showing “a video image of a hand stroking an erect penis” which aired at the tender hour of 6:00 p.m., “a time at which children were likely to be in the viewing audience.”

If this whole rigmarole over Colbert is alarming for any reason, it’s not because CBS will have to shell out sorry-not-sorry money; it’s that, as Variety notes, Pai’s comments “seem to clash with Pai’s vow to maintain a lighter regulatory environment for media overall.”

The Writers Guild of America came to Colbert’s defense: WGA East boss Michael Winship and WGA West chief Howard Rodman told Deadline they were “appalled” by Pai’s remarks, perhaps sensing a harbinger of First Amendment threats to come:

“Pai’s remarks are just the latest in a series of statements by the current administration indicating a willful disregard of the First Amendment. Colbert was poking fun at authority — a time-honored American tradition and an essential principle of democracy. What is obscene is not what Colbert said but any attempt by the government to stifle dissent and creativity. Our unions vehemently support Colbert and his writers and will fight for his or any individual’s right to publicly express his or her opinion of our elected officials.”

Even if everyone tweeting #FireColbert changes the channel, it seems awfully unlikely that this controversy, and its attendant buzz, will have any negative impact on The Late Show. Colbert has seen his numbers rise as his patience for President Trump falls, regularly beating Jimmy Fallon in the ratings by an ever-widening margin. Even if he were the type to be shamed by a hashtag campaign, the numbers that actually matter are working in his favor.

He’s not the only one winning viewers by firing at POTUS: Late night, of late, has been whatever the opposite of a safe space is for Trump, his staffers, and his supporters. Even the usually affable-to-all-bros Jimmy Kimmel is speaking out against the conservative status quo; his heartfelt monologue about his infant son’s heart condition, which ended in a plea for health care access for all, went viral. A longtime viewer of Kimmel — like one who remembers when he hosted The Man Show and blessed viewers with such progressive segments as “Trampoline Girl Tryouts” — was likely caught off guard not just by the monologue but Kimmel’s follow-up episode, which delved into some of the finer points of health care law with Louisiana Sen. Bill Cassidy (R).


In his non-apology, Colbert did say that, were he to do his monologue all over again, “I would change a few words that were cruder than they needed to be. I’m not going to repeat the phrase.” But when he puts it that way, it just seems like something Trump could never relate to or understand. It’s not like Trump has ever used a few words that were cruder than they needed to be.