:: When the FCC Chair mouths off about his duty to enforce rules when discussing speech offensive to his own political party, his words have a chilling effect on speech.

On Monday, May 1, 2017, Stephen Colbert, host of The Late Show, unleashed a string of school-yard insults on President Trump that we can assume made our prickly President freak out, given his other reactions to television taunts of his administration.

One of the insults seems to have landed Colbert in trouble with the FCC: “The only thing [Trump’s] mouth is good for is being Vladimir Putin’s c**k holster.” Because the show is taped in advance, producers were able to bleep the word “cock” before broadcasting the show, effectively self-censoring Colbert. Nevertheless, the FCC received loads of complaints from viewers over Colbert’s words. People started worrying about government suppression of speech.

However, Esquire Magazine, Brian Stelter of Reliable Sources on CNN (via Twitter), and others insist that the world needs to chill out because the FCC is just doing a run-of-the-mill review of Colbert’s words. It’s true: the FCC is required by law to review complaints it receives. That’s no big deal. For real, I wouldn’t be surprised if the FCC receives complaints about Colbert’s show every day of the week, and those complaints must be reviewed.

But this review of this speech under this administration is a big deal. Colbert was insulting Trump for attacking the media in a world in which Trump’s attacks on the media have risen to “war.” And it’s not just the FCC review that’s the problem, it’s how the FCC Chairman has handled it in public, using the lightning rod that is Colbert as a spotlight to shine on his hardline enforcement bonafides. Even if Colbert is never punished for this (and he likely won’t be), under this particular administration, suppression of speech is always a real threat.

What Colbert Said—and Why

Colbert unleashed his insults against Trump in his opening monologue, but the insults did not arise in a vacuum. In fact, it is telling that the insults specifically came in response to an attack on the media by Trump.

Colbert’s opening monologue centered on Trump’s handling of the 100-day mark of his Presidency, which included an extended interview with Face the Nation’s John Dickerson. During that interview, Trump openly mistreated Dickerson (at least) twice. The first incident that Colbert showed happened at the end of the interview. Trump and Dickerson were in the Oval Office when Dickerson asked Trump if he stood by his claim that President Obama had had Trump wiretapped. Trump said, “I don’t stand by anything.” When Dickerson pressed Trump, Trump rudely dismissed Dickerson by taking a seat at his desk and refusing to acknowledge Dickerson’s presence any further. The dismissal was awkward and insulting.

Colbert then showed a clip from earlier in the interview in which Trump more directly insulted Dickerson.

Trump: “…When the fake media goes out, which we call the MSM, which sometimes I must say is you.”

Dickerson: “You mean me, personally?”

Trump: “Yes. I love your show. I call it Deface the Nation.”

Colbert was clearly angered by this treatment of his colleague. He said, “Donald Trump, John Dickerson is a fair-minded journalist and one of the most competent people who will ever walk into your office, and you treat him like that?” He then launched into a string of insults that would make any thirteen-year-old on a school bus proud.

The point is, Colbert did not insult Trump in a vacuum. His insults arose in response to Trump’s longstanding attacks on journalists. No President of the United States in modern history (or arguably ever) has maintained such sustained, high-level animosity toward the press. No, not even Nixon. In January of this year, during a visit to the CIA headquarters, President Trump said, “I have a running war with the media.” Reince Priebus, Trump’s White House Chief of Staff, said in April that the White House is looking into changing libel laws because “newspapers and news agencies need to be more responsible with how they report the news”—echoing Trump’s ranting over “fake news” reporting by the media (even though he’s yet to actually file a libel suit as President).

To have the FCC Chairman wave his arms about Colbert’s particular speech while the President who hired him is at “war” with the media is a double-whammy of suppression—even if Colbert is never punished (and probably won’t be). Pai’s words and actions create an environment where people think twice about insulting the President. That’s what First Amendment folks call the “chilling effect.”

Why We Should Worry About What FCC Chairman Ajit Pai Said

Most news coverage of this situation has focused FCC Chairman Ajit Pai’s radio interview that happened just after he watched a clip of Colbert’s monologue. But Pai gave another interview earlier that week during which he discussed Colbert. Without the earlier interview, you can’t see what an immense about-face Pai made before and after he watched the Colbert clip. This about-face showed Pai’s hand—he watched Colbert’s clip, and he got pissed. The FCC isn’t supposed to meddle in political speech. That’s a huge no-no. But Pai’s reaction to Colbert when you compare these two interviews—especially in Trump’s America—is enough to stoke real fear. Here’s what happened.

On Wednesday and Thursday the week of Colbert’s broadcast, Ajit Pai, the FCC Chairman, publicly discussed the complaints against Colbert on right-wing radio interviews. Pai was on a radio tour selling the FCC’s move to kill net neutrality, a tour that happened to coincide with Colbert’s schoolyard insults that happened on Monday.

In the first interview, right-wing host Steve Malzberg asked Pai if the FCC was going to punish Colbert. Pai had yet to see the clip, but the gist of his response was probably not, because at the FCC, “We don’t get into the business of regulating content” and “people are willing and able to say just about anything these days.” The interview’s headline read,“FCC Head Pai: Colbert Off the Hook for Trump-Putin Sex Quip.”

In this first interview, Pai was appropriately circumspect with his language. After all, it is extremely unlikely that anything Colbert’s pre-taped late-night show would present on late-night television would ever meet the legal standard for an FCC violation.

According to University of North Carolina School of Law professor Mary-Rose Papandrea, “The FCC does not proactively look for indecent or obscene content and instead relies on citizen complaints.” Furthermore, “It is not surprising people would complain about [Colbert’s] joke, for several reasons. People do not know the FCC’s standards. Some people are pro-Trump supporters and are unhappy with the way late-night comics are going after him.  Some people strongly believe that our airwaves should be ‘family friendly.’” In other words, complainers are going to complain, and the FCC has to review the complaints.

For late-night television (anything on after 10pm) to violate FCC standards, it must rise to the level of “obscene,” a very high legal standard to meet. The definition of “obscene” is governed by a test created by the U.S. Supreme Court case Miller v. California (1973). Under the Miller Test, the speech must appeal to the prurient interest, must describe a sex act in a patently offensive way, and must have no serious value, such as artistic or political value.

According to Papandrea, “There is no possible way that Colbert’s comment meets this very high standard.” She explains: “Colbert’s joke does not appeal to the prurient interest and does not lack serious political value, particularly when his joke is taken ‘as a whole,’ as the law requires.  I also do not think his joke describes sexual conduct in a ‘patently offensive’ way, but I could imagine reasonable people disagreeing about that.” The last part doesn’t matter though because the speech has to meet all three prongs to be obscene.

If there’s no way Colbert’s going to get in trouble, and the FCC is just doing a run-of-the-mill review, then why are people worried? And are they right to be worried?

The problem isn’t that Colbert might be found in violation of FCC regulations. The problem is that Pai went on the radio again and completely changed his language and tone after seeing the clip from Colbert’s show. Pai can say that the FCC doesn’t regulate content, but the only reason that Pai’s manner would have changed so much would be the content of Colbert’s comments. Pai publicly showed his politics, and they were far from reassuring to those who value a free and open media.

And when you put Pai’s politics in the context of the Trump administration’s efforts to suppress the media, the answer is yes. People are right to be worried.

During the second that interview, Pai changed his tune about the Colbert clip. Continuing his death-of-net-neutrality radio tour, Pai appeared on the right-wing Rich Zeoli show. This time, when Zeoli asked if Colbert’s words were “an FCC violation,” Pai said that he’d seen the clip and that the FCC would “take the appropriate action.”

“Take appropriate action” is a big change from the “Off the Hook” headline from the day before. People who aren’t legally savvy might think that something had changed, legally, even if nothing had. And the only difference? Pai had seen the clip. But there was more. Pai’s tone changed too—gone was the circumspect agency guy from the first interview. The Pai in the second interview was a hardline enforcer.

Zeoli noticed the changes to, and pointed them out with his first follow-up question: “So you’re actually going to be looking into it, then?” In other words, yesterday it seemed you weren’t, and today it seems you are. In his follow-up response, Pai gave some bland language about the standard procedures at the FCC. But Pai was far from circumspect about Colbert on Zeoli’s show. The two discussed Colbert for over four minutes—half of the duration of the interview.

Pai even talked about what the remedy—punishment—would be if the FCC were to find Colbert in violation. Imagine a detective threatening a suspect by discussing the punishment for the crime the suspect is being interrogated for when the detective knows the suspect is innocent. Remember: there is no way Colbert violated FCC guidelines. Why is Pai talking about his potential punishment? On the radio?

I’m going to presume Pai is not an idiot, and that he knows that there is no way Colbert would actually be found in violation. So what was Pai doing? Why didn’t he just stop talking? The consequences of his words were predictable—of course talking about the possible punishments of Colbert would freak people out. Of course people ignorant of the intricacies of the FCC would worry about their free speech, their ability to make fun of our government. And that very worry—that fear—is what authoritarian states are built on.

The nail in the coffin came when Zeoli said, “You haven’t been a guy who has gone after speech though. You’re not like the FCC commissioners back in the 80s who used to go after Howard Stern all the time.” Zeoli was practically begging Pai to say that he’s not an obscenity enforcer. But rather than agree, Pai was quick to come back with his hardline bona fides: “Well, we have these rules on the books that we’re duty-bound to enforce, and I’m committed to enforcing them.” If we weren’t sure whether Pai was going to be a speech enforcer, we are now.

The Zeoli interview was the interview that sparked outrage and fear, and I would argue rightly so. When the FCC Chair mouths off about his duty to enforce rules when discussing speech offensive to his own political party, his words have a chilling effect on speech. And all of this started because a comedian mocked our President for insulting the press.

So no, we’re not at the Stephen-Fry-getting-hauled-off-the-stage scene in V for Vendetta. That’s not the problem here. The problem is that the head of one of our administrative agencies, agencies that are supposed to be apolitical in their enforcement of their regulations (LOL), politicizing the punishment of speech critical of the government. After Pai’s Zeoli interview, people got scared—you can see the fear in all the frenzied headlines. When people are scared, speech is curtailed. And that’s a win for Trump in his war on the media.


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