Religious Broadcasters Oppose Investigation of Hate Speech by FCC

WASHINGTON - Oct. 16, 2014 - PRLog -- WASHINGTON, D.C. (Oct. 16,  2014):  The organization "National Religious Broadcasters" has written a letter to the FCC, which was also posted on several websites, opposing  a possible hearing on "hate speech" on our nation's airwaves, by suggesting that any such investigation might "expunge opposing viewpoints [presumably from religious broadcasters] from the marketplace of ideas."

       "It's both sad and depressing when religious broadcasters feel that they might not be able to express their viewpoints without using words like "N*ggers," "R*dskins," "W*tbacks," "K*kes, "Ch*nks," and "F*ggots" on the air, says public interest law professor John Banzhaf, whose petition sparked a suggestion by FCC Chairman Tom Wheeler that such a hearing might be considered.

       Indeed, says Banzhaf, such a hearing might even be required by law.  Several Native Americans have filed affidavits in support of Banzhaf's formal legal petition, opposing the renewal of team owner Dan Snyder's radio station license, on the grounds that the station’s repetitive and unnecessary use of the worst racial slur applicable to them is contrary to the "public interest" - the standard stations must meet to have their broadcast licenses renewed.

       Banzhaf notes that federal law requires a hearing if there are any issues of material fact.

       "It's hard to think of an issue of fact which is more relevant to whether a station is operating in the public interest than if its repeated and unnecessary use of racial slurs is causing harm based on a person's race or ethnicity, exactly what these three new petitioners are claiming," says Banzhaf.

       Thus a hearing on this issue, among many others, might have to be held, he concludes.

       The religious broadcasters suggest that any inquiry into hate speech by the FCC - something now called for by no fewer than 30 major civil rights and other organizations representing many minority groups - would violate the "Bill of Rights."

       But this ignores clear Supreme Court precedent that fighting words enjoy no constitutional protection whatsoever, and thus those who use them can be punished, even if uttered on the street, much less than when broadcast to children and others on the public's airwaves which are regulated by the FCC.

       For example, the North Dakota Supreme Court recently held that the word "n*gger" was a fighting word.   Indeed, even the ACLU has admitted that racial epithets can constitute "fighting words," using as an example a white student who stops a black student on campus and utters a racial slur.

       Also, citing instances in Spokane, Los Angeles, Florida, and in Cincinnati (involving Cincinnati Reds owner Marge Schott) where speakers used racial slurs, the Seattle Times wrote: "In all of these cases, experts classify the stigmatizing language as 'fighting words.'"

       “Fighting words” are defined as “those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" - which is exactly what these Indians are contending, says Banzhaf.

       And a racial slur is more likely to trigger violence than most other general purpose insults, says Banzhaf, noting that calling an African American a “n*gger” or even a “sp**k” is more likely to trigger a breach of the peace than calling him an “*sshole” or a “dumb*ss.”

       Banzhaf also notes that a former Chairman of the FCC, two former FCC commissioners, and almost a dozen other broadcasting law experts have declared that the indiscriminate use of the word “Redskins” on the air is probably illegal, and that the FCC can constitutionally remedy the problem.

       In response to the religious broadcaster’s letter, Prof. Banzhaf has written a responsive letter to FCC Chairman Wheeler which will be placed in the agency’s files.  In it he shows how religious broadcasters can continue to express both their religious and policy views - including some which many viewers or listeners might find offensive or hateful - without using racial or ethnic slurs.  It reads as follows:

   You recently received a letter from Jerry A. Johnson, writing on behalf of “National Religious Broadcasters,” suggesting that any effort by the FCC to determine if the repeated and unnecessary on-air use of racially derogatory words like “R*dskins” or “N*ggers” causes harm (as has just been specifically alleged under oath in legal petitions supplementing mine regarding WWXX), and, if so, if considering that as one factor regarding license renewals, would "expunge opposing viewpoints from the marketplace of ideas."  I respectfully disagree, and set forth below my response - one which has been posted on news blogs on the Internet.

   As a attorney who actively defends the First Amendment, I do not share the Mr. Johnson's concern that the FCC reviewing the many studies which show that the repetitive and unnecessary on-air use of the word "R*dskins" causes harm to many American Indians, and to take any such finding into account as one factor in determining whether a station - which repeatedly and unnecessarily used a word found in many legal proceedings to be  a "racial slur" - is in fact operating in the "public interest"as the law requires, would either violate the Constitution or "expunge opposing viewpoints from the marketplace of ideas."

   For example, my petition would have no impact on religions or religious leaders who may wish to express strong feelings about homosexuality, homosexual acts, the homosexual lifestyle, etc. - even if some would regard such views as "hateful" views - provided they did not deliberately and repeatedly and unnecessarily use words on the air like "f*g," "f*ggot," "f*iry, etc. which most people would regard as hateful.

   For example, one can easily preach that homosexuals are sinning without using the word "f*ggots," - a word which adds nothing to the weight of the assertion itself.  Similarly, in the area of policy rather than religion, one can argue against what some call the "homosexual agenda" without saying that "f*gs" have an agenda, or that it is a "f*g agenda.”

   In short, one can express and debate religious or other ideas without repeatedly and unnecessarily using the words which are most derogatory if not hateful regarding those one wishes to condemn, no matter how strongly.  Thus the “marketplace of ideas” can and should remains open and vibrant, even if those participating on the public's airwaves may be somewhat limited in repeatedly and unnecessarily hurling degrading racist epithets at each other.