Broadcast License Challenges Over Redskins - WashPost
Target States Include AZ, CO, DC, MD, NM, OK, SD, VA

The Washington Post has joined Broadcasting & Cable magazine in reporting on challenges to radio and TV broadcast licenses which may affect how the activities of the Washington Redskins will be covered by broadcasters both in DC, MD, and VA, but also in other states including AZ, CO, NM, OK, and SD which have substantial American Indian populations. The challenges are based upon a new Court of Appeals decision reinvigorating a determination canceling of the "Redskins" trademarks, but also upon rulings in California and Utah revoking "Redskins" license plates, and a U.S. Commission on Civil Rights determination.

The WASHINGTON POST reports in this morning's edition that: "A local lawyer has sent registered letters to the four biggest TV stations in Washington, serving notice that he and several Indian and civil rights groups intend to challenge their broadcast licenses if they do not curtail the use of the word "Redskin" in news and sports reports. John Banzhaf, who teaches law at George Washington University and has been campaigning against the use of the word for decades, cited a court decision last week allowing the Redskins trademark to be challenged. None of the local licenses come up for review until 2007." http://www.washingtonpost.com/wp-dyn/content/article/2005/07/21/AR2005072102046.html

BROADCASTING & CABLE MAGAZINE had previously reported: "Washington attorney John Banzhaf, who helped sue tobacco ads off the airwaves in the late 1960's, is renewing his campaign to remove "Redskin" from the nation's broadcast vernacular, or at least limit its use, by threatening to go after station licenses. He has sent registered letters to the four biggest stations in Washington --WJLA, WUSA, WTTG and WRY -- advising them of a Friday Federal Appeals Court decision that he says puts the Washington Redskin trademarks in jeopardy by "restoring the unanimous finding by the Trademark Trial and Appeal Board that the word 'Redskins' was so racially derogatory and offensive that the Washington Redskins’ trademarks should be invalidated." Banzhaf, who has also been pushing to get "Redskin" off the airwaves since the late 1960's, says that the court decision, combined with the broadcasters' willingness to self regulate over indecency and profanity, plus the rise of the Internet as a tool to recruit support, has prompted the move to target stations for license renewal challenges. He also plans to contact stations in Midwestern states with large American Indian populations, putting them on notice that continuing to use the term to refer to the Washington NFL team could draw a license challenge. States he is targeting with licenses coming up for renewal shortly include Colorado and South Dakota (December '05), Oklahoma (February '06), and Arizona and New Mexico (June '06)." http://www.broadcastingcable.com/index.asp?layout=article&articleid=CA626604&display=Breaking%20News

THE FOLLOWING PROVIDES ADDITIONAL BACKGROUND INFORMATION

Friday Decision Revives Broadcast License Challenge Over “REDSKINS” Broadcasters Warned to Moderate Use of Racially Disparaging Word

An appellate court ruling on Friday revived the threat of a broadcast license challenge, with DC area and other broadcasters warned to limit their use of the word “Redskins” which has been found by four governmental bodies to be racially disparaging.

Friday’s ruling by the U.S. Court of Appeals overturned a decision by a lower court which invalidated a unanimous finding by the Trademark Trial and Appeal Board that the word “Redskins” was so racially derogatory and offensive that the Washington Redskins’ trademarks should be invalidated.

Because virtually the same finding was made by three other governmental bodies, broadcasters are being warned that these unanimous findings require them to substantially moderate their use of the R-word, and the display of the visual trademarks, or risk facing a challenge at broadcast license renewal time.

The warning came from the public interest law professor behind the license challenge whose previous challenges forced broadcasters to provide hundreds of millions dollars worth of air time for antismoking messages and eventually drove cigarette commercials off the air. He was also the lawyer behind a license challenge which led, for the first time, to African Americans appearing on television screens in significant reportorial and acting roles, and not just as maids, gangsters, and other minor characters.

The warning, styled as a legal notice, noted that broadcasters almost never use the N-word, even when it is part of the name a group chose for itself, and rather refer to the entity as N.W.A. “One assumes that the same self restraint would apply if an athletic team made up solely of African Americans decided to call itself ‘Niggers With Attitude,’ ‘Nigger Warriors,’ ‘Washington Niggers,’ or by some similar name.” Why then, the letter asks, shouldn’t broadcasters likewise refrain from using the equally offensive R-word regarding a team where the name wasn’t chosen by American Indians who do clearly find it offensive.

Four different bodies – the Trademark Trial and Appeal Board (revitalized by Friday’s Court of Appeals decision), the Utah State Tax Commission, the California Department of Motor Vehicles, and the U.S. Commission on Human Rights – have all found the term racially derogatory and offensive, a unanimity of findings which law professor John Banzhaf says should prompt broadcasters to limit their use of the term or risk a legal challenge to their broadcasting licenses. He argues that the law imposes such a duty in view of these findings, especially because it is so easy for them to do.

For example, he suggests that broadcasters can avoid unnecessary uses of the offending word on the air by using statements like: "Washington beat the Denver Broncos 14-7," “the Steelers Sacked DC,” "Washington's starting quarterback Saturday will be Joe Doe," or that “Washington is hoping for a win over the Bears,” etc. He also suggests that TV stations not display the even-more-offending visual logos except when absolutely necessary: e.g. when they are part of game footage, or unavoidable at a press conference.

Anticipating arguments that such a policy would affect many other teams, he notes that: “The same rationale does not necessarily apply to the names of other athletic teams which refer to Native Americans since these decisions makes no findings with regard to these other terms, and the evidence suggests that other team names such as the Braves, Indians, etc. do not have the same strong negative derogatory connotations. Indeed, there appears to be no more disparaging word referring to Native American Indians than the word "redskin."

As the Atlanta Constitution noted in commenting on the trademark ruling [4/6/99]: "As part of its research, the three-judge federal panel in Washington noted that almost half of those contacted in a national survey recognized the term 'redskin' as racially derogative. The history of the term is even more compelling, having long been used in much the same fashion as 'kike,' 'nigger,' 'Polack' and similar words.

The Federal Communications Commission [FCC], which would hear any license challenges, seems to be cracking down on broadcasters lately, and they in turn are becoming more concerned not to offend. The Janet Jackson wardrobe malfunction, Terrell Owens’ apology for an offensive ad on “Monday Night Football,” reservations about showing “Saving Private Ryan,” and other incidents illustrate this apparently growing concern.

Professor Banzhaf said he is also hoping to work with American Indian activists to help mount license renewal challenges in other parts of the country where Indians make up a larger percentage of the population, and where broadcasters would find it even easier to refrain from using the racially offensive word. He notes that the time for challenging broadcast licenses is coming up in ARIZONA, COLORADO, MONTANA, NEW MEXICO, OKLAHOMA and SOUTH DAKOTA – all of which have very substantial American Indian populations.

Broadcast stations whose licenses are challenged often face a major and very expensive legal battle. Even if broadcasters are ultimately successful, the challenge to their broadcast license may limit their ability to acquire additional stations or to be acquired, to borrow money for expansion and/or conversion to new technologies, or even to hire top on-the-air talent for news and other local broadcasts.

“No broadcaster would dare refer to a team as the 'Washington Wetbacks,' the 'Jersey Kikes,' or the 'Detroit Ragheads,' any more than he would use the full name of the N.W.A. Why then do they think they face no risk whatsoever in using a term now found by four governmental agencies to be at least as racially offensive?,” asks Banzhaf.

PROFESSOR JOHN F. BANZHAF III Professor of Public Interest Law Dr. William Cahan Distinguished Professor George Washington University Law School 2000 H Street, NW, Washington, DC 20006, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net

Webmaster's note: Received by AISTM.org from Professor Banzhaf III, 08/02/05