On Thursday (1/11), President Donald J. Trump reportedly used the word “s–thole” to describe such nations as Haiti and those in Africa with less-desirable immigrants than other nations, such as Sweden.
The reaction was swift, with respected news organizations such as The Washington Post and The New York Times issuing breaking news alerts. Global news organizations quickly picked up the story; Sky News made it their lead item. The New York Daily News published an unflattering front page with a poop imoji fashioned with a Trump-like hairpiece.
Perhaps most startling was the NPR hourly newscast at 2pm Eastern Friday (1/12), which featured Senate Minority Whip Dick Durban (D-Ill.) recounting the entire conversation involving Trump — with the vulgarity uncensored for full effect.
What should your station do? Respected D.C. Communications attorney David Oxenford has some advice.
In a blog post, Oxenford, a partner with Wilkinson Barker Knauer LLP, notes that the alleged vulgarities from President Trump “predictably caused outrage in many quarters – and left the electronic media, especially broadcast TV, in a quandary.”
Do they broadcast the purportedly used term? Or do they use some euphemism so that the “S” word doesn’t reach “tender ears?”
“The FCC has said repeatedly that there is no blanket rule exempting news programming from its indecency rules,” Oxenford writes.
As a result, NPR could face an indecency action at the FCC for the use of a proscribed word on the air, even in its 2pm Eastern newscast.
However, Oxenford notes, “the FCC has recognized that decisions made about the language used in newscasts are subject to a different level of First Amendment protection than language that might be included in an entertainment program.”
He calls one such incident.
“[W]hen NPR aired excerpts from a tape of mobster John Gotti that had been introduced during his criminal trial, and that tape contained multiple words usually not allowed on broadcast stations, the FCC and the courts found that, in the circumstances of news coverage, the use of these words was not actionable,” Oxenford said.
In another case, a CBS Morning News interview with the winner of the CBS-TV reality series Survivor saw the individual call a competitor on the program a “bullshitter.”
What happened? Nothing.
“The FCC took no action, deferring to the licensee’s decision given that it was made in the context of a news program,” Oxenford says.
While there is no blanket exception for indecency in news programs, the FCC has given broadcast media more discretion to air what otherwise would be prohibited language — so long as it is necessary to provide context in news coverage, Oxenford concludes.
That’s because a huge fine was assessed to a TV station that failed to properly edit a news segment on a former adult industry movie star that had become a first responder.
In that situation, the FCC in March 2015 proposed a massive $325,000 fine for “a 3 second visual image of a penis run in a corner of a TV screen a single time on a TV station during its 6pm news,” Oxenford says. The station: CBS affiliate WDBJ-7 in Roanoke, Va.
Five months later, on August 26, 2015, WDBJ reporter Alison Parker and photojournalist Adam Ward lost their lives after being fatally shot during a live stand-up on the station’s morning newscast.
While the penis incident was considered profane and the use of the term “shithole” in newscasts today may be acceptable, Oxenford suggests radio and TV broadcasters “keep it clean,” as FCC Chairman Ajit Pai has told broadcasters.
“With the FCC’s indecency rules still on the books, and any complaint likely to cost time and money to defend, broadcasters may want to be cautious in their approach to these situations, even in the context of news programs,” Oxenford says.
