Why the FCC is unlikely to go after Stephen Colbert

It is highly unlikely that the Federal Communications Commission (FCC) will fine late-night host Stephen Colbert for an obscene joke he made about President Trump last week, experts say, despite remarks by the agency’s chairman about reviewing complaints filed on the broadcast.

Colbert raised eyebrows with a joke during one of his monologues in which he suggested that Trump and Russian President Vladimir Putin engaged in sexual acts.

“You talk like a sign language gorilla who got hit in the end. In fact, the only thing your mouth is good for is being Vladimir Putin’s c–k holster,” the comedian said, with the profanity bleeped out.

The joke prompted criticism from conservatives, and FCC Chairman Ajit Pai was asked about them in multiple media interviews in the days following. He told Fox Business’ Neil Cavuto that he hadn’t seen video of the joke, but that the FCC would look into any complaints it receives, as it does with all objections filed to the agency by television viewers.

On Thurdsay, he told Philadelphia’s Talk Radio 1210 WPHT something similar after he had finally watched the clip.

“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.

“We have received a number of complaints, as I said, and we’ll follow the standard operating procedures, as we always do, and make sure we evaluate what the facts are and apply the law fairly and fully,” he said later, adding that the most common penalty would be a fine.

Some critics of Trump seized on Pai’s comments as a sign that he was preparing to crack down on political speech, even though it is standard for the FCC to look into all the complaints it receives.

“Pai’s remarks are just the latest in a series of statements by the current administration indicating a willful disregard of the First Amendment,” said Howard Rodman and Michael Winship, presidents of the west and east chapters of the Writers Guild of America.

But it’s unlikely that the agency will take action against Colbert. Programming after 10 p.m. is subject to more lenient rules governing what can be aired.

The FCC will likely be examining Colbert’s joke to determine whether it qualifies as “obscene.”

According to the FCC’s website, for material to qualify as obscene, 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.”

Andrew Jay Schwartzman, a communications and technology law professor at Georgetown who has been critical of Pai, called the joke a “non-story.”

“What Colbert said, even if run unbleeped, probably wouldn’t even meet the test for indecency that applies before 10 pm,” Schwartzman wrote in an email. “There is ZERO chance this could meet the obscenity test, which would require extended depiction of actual sex acts.”

The last time the FCC levied a fine for inappropriate material was in 2015, when it hit a Virginia television station for $325,000 for briefly showing an indecent image from a pornographic website.

And in 2012, the Supreme Court threw out earlier fines the FCC had imposed on Fox and ABC for indecent material, but the court did not rule on the agency’s authority to police television content.