The FCC is back in the news—this time for a possible action to fine late night funny man Stephen Colbert for lewd humor aimed at the President.
The FCC almost certainly isn’t fining CBS or its affiliates over Colbert’s tirade, but FCC Chair Ajit Pai definitely could have handled this issue more deftly in a talk radio interview this week. Combined with his poor net neutrality messaging last week, Pai has shot himself in the foot twice, in rapid succession, with poor messaging.
It would be easy to read Pai’s interview answers on Colbert as an implicit attempt to chill edgy criticism of the President. After a careful listen to the interview, I don’t think that was his intent, but it shows that Pai has a lot to learn about the current media environment.
Last Sunday, April 30, President Donald Trump gave an interview to the CBS news show Face the Nation. In it, he described the show as “fake news” and said that he calls it “Deface the Nation.”
The next night, in retribution, Colbert unleashed a string of insults of the President, including, “the only thing [Trump’s] mouth is good for is being Vladimir Putin’s cock holster.” The phallic first part of that last phrase—a phrase that is new even to this profane soul—is bleeped out, and Colbert’s mouth is blurred out as well. (Colbert is receiving legitimate criticism that this trope is homophobic.)
Colbert’s show airs on broadcast TV. This level of edginess—even with the bleeping and blurring—might draw a fine before 10 pm. Before 10, kids are presumed to be in the room, so “indecent” material is forbidden by FCC rules. These rules thus forbid naughty language and even partially naked people—but permit all but the most graphic violence. These standards have been vetted and shaped by Supreme Court precedent, but they still stand.
After 10 pm, though, material must be “obscene” for the FCC to bring the hammer down. “Obscene” material is way worse than “indecent” content. The First Amendment doesn’t go away merely because material is indecent, but the Supreme Court has held that obscene material isn’t protected at all. So the feds can stop distasteful stuff just because kids might be around (before 10 p.m.), but it has to be utter filth before the state can try to stop adults from seeing it.
The agency’s own website states, “The Supreme Court has indicated that this test is designed to cover hard-core pornography” and not material with any artistic merit. So Basic Instinct (with its merely softcore sex scenes and nontrivial plot) would likely be okey-dokey on your local NBC affiliate starting at 10:01 pm—as far as the FCC is concerned.
Some people complained to the FCC about the Colbert bit. This is not news. In fact, anyone can do this without any basis in fact or court precedent. I could file complaints accusing Daniel Tiger of cursing like a sailor; the online system would accept the complaint, and the FCC would make some token investigation pending available staff resources to do so.
In other words, the fact that someone has complained, and that the FCC will investigate a complaint, is not at all the same thing as there being any real threat of a fine or other penalty.
On Thursday May 4, FCC Chair Ajit Pai gave an interview with Philadelphia-based AM talk show host Rich Zeoli. In it, Pai acknowledged the complaints and said that the agency will investigate. He noted that mere indecency is fineable before 10 pm, but that it takes full-on obscenity to get a fine for late night content.
Yet he didn’t actually clarify these legal standards.
Pai was invited to share his opinions on Colbert’s bit, and he declined in an effort not to prejudice the investigation. (Kudos, of course.) He also said that their goal is actually to complete these investigations instead of letting them sit on the shelves, which is what has mostly happened with them in the recent past.
None of this is actually news, either, except that the news media have made it news. (With their margins being what they are, I can’t even blame them.)
The Hill’s Friday headline reads, “FCC to investigate, ‘take appropriate action’ on Colbert’s Trump rant.”
Rolling Stone raves (I always wanted to say that), “FCC Considers Fining Stephen Colbert Over Controversial Trump Joke.”
Countless similar headlines abound. They’re all fair, too. It’s what Pai said, on the record.
So by this weekend, some folks are fearing an imperious, censorious FCC might shut down some criticism of the administration. On first read, I even assumed Pai’s intent was at least to chill some criticism of the President. Instead of settling for reading the excerpts, though, I decided I had to listen to the interview myself and see what he actually did with his words—instead of what others have done with them.
Listen for yourself. I think you’ll hear a high-level administration official being a bit cagey and giving no definitive answer, even though an implicitly clear answer is what’s called for here.
What he should have done is highlight the agency’s own clarification—that a finding of obscenity requires that the content consist of hardcore pornography. Within that context, he could have demurred about whether Colbert’s bit qualified, but it would have answered the question well enough for the listening public without prejudicing the investigation.
Something like, “We haven’t determined whether it’s obscenity, but the Supreme Court has ruled that it basically has to be hardcore porn to be obscenity, so that’s the standard we’ll use as we investigate.”
If he says that as part of his answer, this interview is likely a non-event, nobody gets upset about possible FCC fines, and Pai looks a lot better by not getting bad press. Being against censorship in this case is a pretty easy, bipartisan stance; even the conservative host says he doesn’t want Colbert fined over this. Instead, in a hyper-partisan and hyper-paranoid (justifiably or otherwise, depending on your politics) political environment, Pai is cast as potentially censorious.
It’s ironic that the Federal COMMUNICATIONS Commission head would fail to adapt to the current media environment in this way.
This follows on another, more substantial error in media strategy, on an issue about which Pai actually cares. Late last month, he practically described network neutrality as a Communist plot, pushed through by the NGO Free Press. He radically misrepresented that group’s goal as the nationalization of the internet, when they want no such thing.
Further, he blatantly hides the massive multi-sector coalition behind this push. The coalition ranges from legal scholars (most of whom support at least the Title II classification the last FCC orchestrated) to major industry players (such as Google and Facebook) to a broad range of nonprofit actors and more.
Not only was this intellectually dishonest, it’s a genuine strategic mistake. The biggest threat to Free Press isn’t that Pai badmouths them; it’s obscurity and the resulting inability to raise money and mobilize internet activists. If he hates them so much, his best move is to ignore them, not to cast them as the heroes of network neutrality. (Along with Public Knowledge, they are especially prominent members of the NGO wing of that side of the debate, but these groups are in pretty good company.)
Moreover, network neutrality is an incredibly complicated technical issue that’s hard to mobilize around, but the pro-network neutrality crowd has the stronger incentives to mobilize. This is exactly what Minjeong Kim and I found in our research on the issue, and the finding was duplicated by Lee, Sang, & Lu in 2015, and by a team at Harvard’s Berkman Center in 2016. The more the net neutrality debate is brought into the public sphere, the more the pro-net neutrality side mobilizes.
This is why the last anti-net neutrality crusading FCC head, Michael Powell, made it as boring as possible. He basically parroted industry talking points about congestion and economic incentives. (A funhouse mirror version of these talking points can be heard in then-Senator Ted Stevens’ wonderfully incoherent 2006 rant about the “series of tubes.”)
Phrased in these terms, the debate would put anybody to sleep, and even those who try to make it exciting often struggle. This is not just my opinion. I met Chris Hayes at a house party some years back, when he was still subbing for Olbermann. Just weeks before, Hayes had done an interview with a major net neutrality advocate. (I won’t name this advocate, but they are an exceptionally good communicator, and I was impressed by their performance in the segment.) I brought this up, and Hayes said that their ratings had dropped by HALF versus the previous segment.
“Comcast might censor the internet” is the only framing that sparks enough interest to mobilize the public. Everything else pushes it deep into wonk territory. And that’s where Pai wants it!
By throwing out easily disproven character assassinations of his opponents, Pai instead draws it further into public view, where the public can better be mobilized. He invites people to see what Free Press has to say on the issue.
This is an obvious strategic mistake, and (again) the head of the Federal COMMUNICATIONS Commission should know at least that much about political communication and political mobilization.
So, to recap:
The FCC is almost certainly not going to fine Colbert for his bleeped-out “cock holster” comment.
It is almost as certain that they will strip away the network neutrality protections that took a Sisyphean decade of work to enact.
And Ajit Pai is cocking up the messaging for both.