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Opinion: FCC can't block broadcast of R-word on public airwaves

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Law professor Eugene Volokh argues that the Federal Communications Commission can't outlaw the use of racist terms on public airwaves regardless of the issues raised in a petition against the R-word:
[W]hether or not “Redskins” is “inappropriate,” racist, or insulting, I think 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. In the controversial FCC v. Pacifica Foundation decision (which both Justice Thomas and Justice Ginsburg have recently argued should be overturned), the Court did uphold a restriction on particular vulgarities (the famous “seven dirty words”).

The premise of the criticism of “Redskins” is precisely that it embodies a racist, demeaning message about American Indians (whether or not this is intended by those who use it), and that it offends because of this racist meaning. It thus is the speaker’s imputed opinion and supposed “political content” of the word that gives offense. A ban on such words isn’t just content-based, but viewpoint-based (since it is precisely the racist viewpoint underlying the term that makes it offensive), and is thus outside the Pacifica rule. And in R.A.V. v. City of St. Paul (1992), the Court stated more clearly what the Pacifica majority strongly applied: that viewpoint discrimination is generally unconstitutional even where some degree of content discrimination might be (see, e.g., footnote 6, and pp. 390-92).

And the FCC has in the past agreed that it may not restrict broadcast speech on the grounds of its supposed racism.

Get the Story:
Eugene Volokh: No, the FCC may not ban the use of “Redskins” on radio and TV broadcasting (The Washington Post 10/1)

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