Or to put it another way, Stephen Colbert’s ugly, vulgar and uncivil slur against President Trump may have been unfunny, biased, demeaning to the audience and the network (CBS), and corrosive to political discourse and the culture—it was all of these—but he didn’t violate any regulations or laws.
Yes, it’s always legal to be smug, pandering, hypocritical jerk.
The FCC spokesman confirmed the commission was not launching an investigation regarding the episode in which Colbert broke new ground in gutter language on network TV.For one thing, the “Late Show With Stephen Colbert” is exempt from the FCC’s policies on profanity and indecency because its indecent rules only apply to TV and radio shows airing between 10 p.m. and 6 a.m., when children are supposedly not in the audience.
That would not save Colbert if his words were judged legally obscene (and thus not protected speech), but Colbert’s comments would not be found obscene under established court standards. Concludes Constitutional law expert (and Supreme Court appointee-in-waiting) Eugene Volokh:
“The legal analysis sounds quite right to me. I think the broadcast indecency rules are unsound and unconstitutional, and I share Justices Ruth Bader Ginsburg’s and Clarence Thomas’s views that the decision upholding them — FCC v. Pacifica Foundation (1978) — should be reversed. (I also thought that the relevant joke was appalling, but that should be a matter of taste and judgment, not of illegality.) But this particular incident would not be covered by those rules.”
Thus this episode is another example of when something one has a right to do is not necessarily something that it is right to do. Law is one thing, ethics is another.
Meanwhile, Colbert has no right to be a late night TV host either, and if he cannot do so in a dignified, civil and professional manner, he should be relieved of the privilege by a responsible employer—which, we have learned, CBS is not.