Stephen Colbert apparently provoked the ire of more than just Trump supporters and the LGBTQ community when he made a controversial joke on The Late Show earlier this week. According to The Hill, the Federal Communications Commission has opened an investigation into Colbert’s comments to see if the joke, which illustrated a sexual act between the president and Vladimir Putin using the word “cock,” meets the Supreme Court standards for “obscene” content. Colbert half-heartedly apologized for the joke on Wednesday, saying his words were “cruder” than they needed to be following the #FireColbert boycott that spun up on Twitter in the aftermath.
The FCC, beyond its current role as the imminent destroyer of net neutrality regulations, is also tasked with policing speech on US television. The organization is bound by the rules of the Supreme Court set out in the landmark 1978 case, FCC v. Pacifica Foundation, which established the agency’s power over “indecent” and “obscene” broadcasting. The case also established the “seven dirty words” doctrine, which laid out the swear words you cannot say on television in excess for fear of being fined by the FCC. One of those original words happens to be “cock sucker.” In Colbert's monologue he said, "The only thing [Trump's] mouth is good for is being Vladimir Putin's cock holster.”
There are byzantine rules that define how something like this is handled administratively. For instance, if the broadcast is prior to 10PM ET, it must only meet the loose standard of “indecent,” which typically involves use of any harsh language, violence, nudity, and things of that nature. After 10PM ET, when Colbert’s show airs, the questionable content must be found “obscene.”
These are of course nebulous concepts subject to the ever-changing moral standards of modern society. Nonetheless, the FCC received a number of complaints regarding Colbert’s joke and is exploring whether to hand down a fine. Typically, regulators are bound by the Miller Test, established by the 1973 Supreme Court case Miller v. California, that created a three-tier test to determine if something can be considered obscene. So even though Colbert didn’t use one of the seven dirty words excessively, he still could be found in violation of the Miller Test for having described a sexual act in a way that “lacked serious artistic, literary, political, or scientific value.”
“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,” FCC chairman Ajit Pai told Talk Radio 1210 WPHT on Thursday, according to The Hill. “Traditionally, the agency has to decide, if it does find a violation, what the appropriate remedy should be. A fine, of some sort, is typically what we do.”