Congrats to the Hill, which squeezed 56,000+ shares and more than 4,000 comments from this nothingburger.
If you file a complaint with the FCC, your complaint will be investigated. That’s the sum of the “news” here, but since The Resistance is invested in the idea that all bad federal policy flows directly from Trump, this has turned into a story for some about the administration squelching free speech. As various conservatives have noted on social media in the last 24 hours, the heavy breathing this week over Loyalty Day, which has been marked annually by presidents since the 1950s, falls into the same category. There’s nothing novel about Trump marking it, but an anxious progressive who’s all-in on the idea that everything the government has done since the inauguration is abnormal and sinister will be eager to jump to that conclusion. And websites aware of the demand for news in that vein will be happy to take their page views by giving them reason to jump.
Whatever you do, don’t call it fake news:
On Thursday, FCC Chairman Ajit Pai was asked on Talk Radio 1210 WPHT if Colbert’s comments violated FCC decency rules.
“I have had a chance to see the clip now and so, as we get complaints, and we’ve gotten a number of them, we are going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action,” Pai said.
An FCC spokesman further conveyed this point to CNNMoney: “We review all consumer complaints as a matter of standard practice and rely on the law to determine whether action is warranted. The fact that a complaint is reviewed doesn’t speak one way or another as to whether it has any merit.”
The Colbert “cock holster” remark would have made for an interesting legal case if it had been broadcast before 10 p.m. Since it was broadcast after 11:30, the complaints are going nowhere:
Obscene content does not have protection by the First Amendment. For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person’s prurient interest; depict or describe sexual conduct in a “patently offensive” way; and, taken as a whole, lack serious literary, artistic, political or scientific value.
Indecent content portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity.
Profane content includes “grossly offensive” language that is considered a public nuisance…
Broadcasting obscene content is prohibited by law at all times of the day. Indecent and profane content are prohibited on broadcast TV and radio between 6 a.m. and 10 p.m., when there is a reasonable risk that children may be in the audience.
Was the joke profane? Sure, although CBS bleeped the word “cock” and pixelated Colbert’s mouth so that viewers couldn’t read his lips. (The mystery word was, er, clear enough from the context.) Was it indecent? If the seven dirty words, which include the word “cocksucker,” are indecent, presumably “cock holster” is indecent. Comedy is no defense, as George Carlin would have told you. Obscene? Of course not. The content wasn’t designed to turn you on, i.e. appeal to your “prurient interest,” it was designed to make you laugh. And millions of Colbert fans would swear that the monologue had “serious political value,” however dubious that seems to the right. Obscenity is a high bar because, as noted above, it’s illegal in all contexts; dropping that hammer on a comic for nothing more than telling a crass joke would be a big deal. Even if this was a borderline obscenity case, which it isn’t, I assume Pai and the FCC would give Colbert a pass if only to spare them and their boss from the headache of Colbert being turned into a free-speech martyr overnight. His ratings would boom, the feds would likely lose their case in court, and the left would spend the next three and half years taunting Trump by calling him “President Cock Holster” or whatever.
Here’s Pai appeasing Fox’s viewers yesterday by assuring them that all complaints will be investigated. That’s as far as this will go — although the odds of Trump reacting badly when the FCC takes no action, like, say, by tweeting something about how Colbert should have been fined or taken off the air, are (as always) nonzero.