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Native Americans Challenge L.A. TV License of KTTV Over “Redskins”
Legal Petitions Raise New Legal Claims About “Fighting Words,” and “Hostile Work Environment”
This followed a similar filing by three Native Americans and a public interest law professor opposing the renewal of the FCC license of WWXX-FM in the DC metropolitan area - petitions the Chairman of the FCC has publicly stated would be given serious consideration on the merits.
All the petitioners argue that the respective stations have not met their legal obligation to operate in the public interest, because repeatedly and unnecessarily using a highly derogatory word - which has been found in several legal proceedings, as well as in dictionaries, to be a racial slur - when children are in the audience is clearly contrary to the public interest.
“No station which repeatedly and unnecessarily used the word “N*ggers” on the air would ever have its license renewed, and Native American leaders all say that the R-word is as much a racial slur to them as the N-word is to African Americans,” says public interest law professor John Banzhaf, who filed the original petition against the renewal the license of WWXX-FM.
FCC Chairman Tom Wheeler has said that his agency would give serious consideration to Banzhaf’s legal petition - a move likely, according to several broadcasting law experts, to hold up the renewal process with hearings and other proceedings, and affect the station’s credit rating and cause other problems.
Also, in an unusual move because the issue is already directly before them, Wheeler and two more of the five-member agency expressed their concern or even disapproval of the “R*dskins”
All the petitions now before the FCC have also couched their arguments against renewal in other legal terms, arguing that racist slur words like “R*dskins”
The petitions, in a new legal move, now also argue that racial slur words are classic examples of “fighting words,” a category of words which the U.S. Supreme Court has ruled enjoy no First Amendment protection because they add nothing to the communication of any idea, and have a tendency to incite violence. Indeed, the petition cites dozens of studies showing how the use of the R-word causes harm to Native Americans - a novel factual issue which may have to be the subject of an agency hearing.
Indeed, says Banzhaf, such a hearing probably would be required by law. Several Native Americans have filed affidavits in support of Banzhaf's WWXX-FM’s legal petition, and all of the Native Americans has alleged under oath that: "I have experienced and/or witnessed harm to myself and/or to other Native Americans which I believe was caused by the frequent repetitive use of the word “R*dskins”
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 and central 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 the Native American petitioners are claiming," says Banzhaf.
Thus a hearing on this issue, among many others, might have to be held, he concludes.
The new petitioners also argue that forcing employees to listen to racial slurs all day long, much less to have to write down such words and/or even say them on the air, creates an illegal “hostile work environment,”
“Many court decisions have held that companies cannot freely permit the use of racial slurs like “N*gger,” “W*tback,”
How much more wrongful is it when racial slurs are repeatedly used at a radio or TV station, and employees must not only be exposed but in some cases write or edit copy containing the words, use them on the air, etc. The shear volume of such barring orders strongly suggests that they do not violate the First Amendment, especially since using words like “N*gger” add nothing to the ideas the speaker wishes to express.
One of the three Native Americans who have just filed legal petitions opposing the renewal of KTTV’s license in L.A. is Larry Smith, an Indigenous community member, radio host, and educator.
In a statement, he wrote: "I am joining this media struggle to stave off the intergenerational tides of racism pervasively disseminated throughout the United States that adversely affect Indigenous peoples and their respective First Nations and other citizens. The R*skins name is a classical example of the embodiment of one form of racism that exists in American society and broadcast in the mass media. Public broadcasting stations that use public airwaves and hold public broadcasting licenses, such as KTTV in Los Angeles, CA, should be held accountable not only for broadcasting hate speech, but also for their lack of diversity in producing media content for the public good."
Meanwhile, a former chairman of the FCC, two former FCC commissioners, and almost a dozen other broadcasting law experts have publicly stated that the repeated and unnecessary use of the R-word is contrary to federal broadcast law, and would be grounds for the FCC to revoke or fail to renew the broadcast license of any station which repeatedly and unnecessarily uses the word on the air.
Charges of racism forced the FCC to deny the license renewal of at least one broadcast station.
A similar petition, likewise filed with Prof. Banzhaf’s assistance, asking the FCC not to renew the broadcast license of another TV station because of racism in its on-air broadcasts, forced that station and other stations to first begin featuring African Americans as reporters and in other consequential on-air roles.
GWU Law School