By Allison McDonald on December 1, 2012 
It was a Sunday like any other . . . football games were being played across the country. . . rivalries were thriving . . . flags were flying . . . broadcasters were providing play-by-play commentary.  And, then it happened, the comment: “like he was chasing a bucket of chicken.”[1]  These words came out of the mouth of long-time, stick-his-foot-in-his-mouth, announcer Terry Bradshaw.  Bradshaw was attempting to describe Miami Dolphins running back Reggie Bush’s touchdown run.  Many viewers were angered believing Bradshaw had deliberately made a racist comment.  However, according to Bradshaw, his comment was more directed at NFL Fox Studio Analyst Jimmy Johnson and a reference to their running joke about Johnson’s love for Kentucky Fried Chicken.[2]

Although a first for Bradshaw, it was not the first time sport broadcasters have spouted racist remarks.  In fact, there have been instances of comments tinged with racism harkening back decades.  In 1973, Howard Cosell, while announcing a Monday Night Football game, infamously commented on Alvin Garrett’s touchdown run stating, “look at that monkey run.”[3]  Both men apologized for their comments.  It has already been announced Bradshaw will forego punishment; however, Cosell ultimately resigned following pressure from the network.[4]

Following both of these arguably insensitive comments viewers called for apologies, suspensions, and even terminations.  However, before any of those actions are possible, it must first be determined on what grounds a broadcaster can either be reprimanded or fired for making such off-color remarks on national television.

Free Speech

The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”[5]  Policy behind the Amendment shows Congress’ realization of the importance of Oliver Wendell Holmes’ “marketplace of ideas” theory.  The concept warns against allowing only one particular kind of thought because otherwise, there will never be any evolvement of humankind.  However, it has been long established that the right of free speech is not absolute.  Although not all speech is protected (i.e. obscenity, fighting words, inciting imminent lawless action), the Constitution explicitly protects speech that may be offensive to some listeners or viewers.

Federal Communications Commission (FCC)

The Federal Communications Commission is tasked with regulating interstate and international communications by radio, television, wire, satellite, and cable in every state.[6]  The Commission is also responsible for receiving and investigating viewer complaints “that television and/or radio networks, stations or their employees or guests have broadcast extreme, incorrect or somehow improper political, economic or social statements.”[7]  The FCC receives many complaints that some broadcast statements criticize, ridicule, stereotype or demean individuals or groups because of the religion, race, nationality, gender or other characteristics of the group or individual.[8]  The Commission acknowledges that “people must be free to say things that the majority may abhor, not only what most people may find tolerable or congenial.”[9] However, the Commission urges those who are offended to still make their displeasure known to the guilty station.

Even though most speech, objectionable or not, is free from regulation, courts have held that regulation of indecent or obscene programming is constitutional.  In support of such restrictions, courts have explained the social interest in protecting children from “potentially harmful programming.”[10]  Indecent material can be regulated only so far as the time of broadcast.[11]  Furthermore, indecent material has been described as that which is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”[12] Neither may profane material be regulated, except to the extent the language is “‘so grossly offensive to members of the public who actually hear it as to amount to a nuisance’ and is sexual or excretory in nature or derived from such terms.”[13]

In general, the FCC does not regulate or ban what people perceive as racist comments on television.[14]  The Commission has focused instead on the “Seven Dirty Words” list made famous by George Carlin.[15] Furthermore, as noted above, in order for something to be considered obscene, it must be sexual in nature.[16]  Therefore, the FCC does not focus its regulation on language that includes racial, ethnic, religious or homophobic slurs.  Both the Court and the FCC have refused to extend the definition of obscene to extent to broadcasts that are not sexual in nature.

Following from these definitions, it is clear that Terry Bradshaw’s comment would not fall into any of the three categories.  In no way was his comment sexual in nature.  However, does this mean he could not be punished for his words?  Probably not.  Should Fox have wished, a monetary fine could have been leveraged.  Fox decided against that cause of action.  Ultimately, any reprimand for Bradshaw’s comment would not come as a result of FCC action, but through actions of the Fox Broadcast network.

Moral of the story is – the First Amendment does not protect feelings, only speech.

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