Federal Communications Commission Chairman Tim Wheeler said at a press conference this week that the commission’s board would consider a petition calling on the FCC to prohibit stations from airing the word “Redskins” on broadcasts under its authority to regulate profane language, opening another front in the fight against the name of Washington’s professional football team that activists want to change.
If the FCC moves to regulate “Redskins,” it would be another blow against it from the federal government, after the U.S. Patent and Trademark Office’s Trials and Trademark Board invalidated six of the team’s federal trademark protections on grounds that the name is “disparaging to Native Americans” (the team is currently appealing that decision). Wheeler’s remarks came in response to a complaint filed by George Washington University law professor John Banzhaf, a public interest lawyer who said he filed the petition because he does not think racial slurs should be permitted on air.
Banzhaf filed his complaint against the Washington-area radio station, WWXX-FM, that Snyder owns because he says it uses the word “unnecessarily and repeatedly” hundreds of times each day. The complaint targets the renewal of the station’s federal broadcast license and could tie up the process of renewing the license for months, Banzhaf said. His ultimate aim is clear: he wants the name to change, and he sees removing it from radio and television broadcasts as a viable way to force Washington owner Daniel Snyder, who insists that he will “NEVER” drop the name, to do it.
“At this point, I think everyone has realized that moral persuasion isn’t going to work on Mr. Snyder, so it’s going to be economic pressure,” Banzhaf said in a phone interview this week. If the FCC were to tell stations they cannot use the name, it could further advance an organic movement away from it that has already begun: before this NFL season, CBS, NBC, Fox, and ESPN all said they would give on-air broadcasters and analysts the option to avoid using the name, and multiple high-profile analysts have done so. An array of newspapers and other publications have also decided to stop using it.
An FCC decision against “Redskins,” like the trademark decision, would not require Snyder to change the name, and Banzhaf would not speculate on how far-reaching an FCC decision against the name might be. But he believes it would have the intended effect.
“Eventually,” Banzhaf said, “you can’t have a football team where no one can use your word on the air.”
The larger question is whether the FCC has the authority to prohibit broadcasters from using it. Wheeler, the FCC chairman, has called the name “offensive and derogatory,” and earlier this year, former FCC chairman Reed Hundt and two former FCC commissioners wrote a letter to Snyder arguing that he should change the name.
“It is impermissible under law that the FCC would condone, or that broadcasters would use, obscene pornographic language on live television,” the letter stated. “This medium uses government owned airwaves in exchange for an understanding that it will promote the public interest. Similarly, it is inappropriate for broadcasters to use racial epithets as part of normal, every day reporting.”
In a Washington Post editorial coinciding with the letter, Hundt wrote that the commission “clearly has the authority to investigate whether broadcasters’ use of derogatory names to describe sports teams and players comports with the public interest.”
Banzhaf sees the “extraordinary” opposition to the name’s use from current and former FCC officials as bolstering his case that the commission has “ample authority” to regulate use of the team’s name, and argues that it can do so both out of the public interest — he noted that his complaint cites “more than 100 studies showing that it doesn’t just annoy [Native Americans] or cause psychological problems but actually incites violence against them” — and because it constitutes hate speech. Banzhaf also argues that the name constitutes ‘fighting words’ because it can cause incidents of violence against Native Americans. Such words have more limited protections under the First Amendment.
The FCC can regulate language that it deems profane, but only during certain hours of the day. But its authority on indecency and profanity often raises concerns and legal issues under the First Amendment, and the Washington Post’s Eugene Volokh, a UCLA law professor, wrote this week that he thinks “the FCC is barred by the First Amendment from forbidding it, or from considering its use as a factor in deciding whether to cancel a broadcast license,” a conclusion he reached based on Supreme Court decisions involving the commission’s authority. Ajit Pai, a Republican FCC commissioner, also raised First Amendment concerns about potential action in an interview with CNBC. And though Banzhaf compares use of “Redskins” to other racial slurs, the FCC does not have in place a specific ban on such epithets.
Banzhaf, though, says that removing “Redskins” from the air might not take actual FCC action. Rather, the mere weight of the FCC considering the use of the word could be enough to force broadcasters to act themselves.
“Frequently the FCC regulates via what is called the ‘raised eyebrow,’” he said. “They don’t necessarily have to take formal action. They sometimes just arch that eyebrow to say, ‘We’re a little bit concerned about what you guys are doing.’ And frequently the media is swift enough to take notice of that and take appropriate action.”
Complaints like Banzhaf’s can delay the process of license renewal for stations like WWXX, jeopardizing their credit rating, their ability to hire, and any potential loan or sale they might seek, he said, and he has plans introduce similar challenges to license renewals against other stations in the future (the next one, he said, will target a Los Angeles station because California is home to the nation’s largest Native American population).
Rather than risk their renewals “and all the consequences thereof,” Banzhaf said, stations “might decide that it’s better part of wisdom to simply start saying ‘Washington beat Dallas’ or ‘Dallas sacked Washington’ rather than using the name.”
Banzhaf pointed to the fact that many stations, though not all, have not needed the FCC to act to put in place their own policies banning other racial epithets and profane language, even where the FCC might not have the authority to act. Hundt, the former FCC chair, echoed that sentiment in his editorial, writing that “networks and stations have usually been leaders in adopting evolving standards of respect for other people,” without requiring FCC action first. That would leave the decision to individual stations, likely allaying any First Amendment concerns.
Regardless of the outcome of the FCC process, it is clear that the challenges to the name will keep coming on new fronts. The Change The Mascot campaign has used letters and radio ads to push broadcasters and news outlets to stop using the name, and activists have also targeted companies that sponsor the team and NFL. The efforts will continue involving the government, as well: in September, Sen. Maria Cantwell (D-WA) announced plans to introduce legislation targeting the NFL’s tax-exempt status if it continues refusing to take action on the name.